THE UNIVERSITY OF GEORGIA
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THE CODE
OF THE
STATE OF GEORGIA.
PREPARED BY
R. H. CLARK, T. R. R. COBB AND D. IRWIN.
REVISED AND CORRECTED BY
DAVID IRWIN.
SECOND EDITION
REVISED, CORRECTED AND ANNOTATED BY
DAVID IRWIN, GEO. N. LESTER AND W. B. HILL.
FOURTH EDITION.
PREPARED BY
GEO. N. LESTER, C. ROWELL AND W. B. HILL.
ATLANTA, GEORGIA:
Jas. P. Harrison & Co., Printers and Publishebs.
1882.
RB
KFG30
:
PREFACE TO THE FOURTH EDITION.
This edition to the Code of Georgia was prepared by authority of an Act of the General As-
sembly, approved the 16th of September, 1881.
We have spared neither time nor labor in our endeavor to furnish to the bar and people of Geor-
gia a useful, valuable book. The result cf that endeavor is now submitted to the candid judg-
ment of a generous profession, and a just people.
AVe may not claim that it is perfect, but we do say that we have toiled late and early to make
it as nearly so as human effort could compass such an end.
The undertaking, from first to last, involved great care, vast labor and patient toil, and all
these have been faithfully bestowed.
The revision and thorough annotation of a book like the Code of Georgia is a task that has
nothing easy about it. In executing the task assumed by us, we have endeavored to present an
edition of the Code embodying the following features :
1. An accurate and thorough revision of the statutes, so as to conform to the Constitution of
1877, striking out the repealed sections, with a reference, in every instance, to the repealing law ;
noting all amendments, and inserting all statutes pass- d since 1873, including the laws of the ses-
sion of 1880-1. This was attended with no little difficulty. In quite a number of instances the
Legislature has passed many statutes upon the same subject, sometimes enacting in partthesame
thing, with additions or variations, and at other .times changing the law so as to make the
question of repeal or no repeal a matter of construction, and as we had no power to make or con-
strue the law, and did not feel at liberty to sift and analize the statutes on a given subject, and thus
determine what was the law on that subject, in all cases of doubt, we inserted all the statutes,
leaving it to the Courts to decide what was repealed and what was not repealed, and to determine
the law by construing all the statutes together.
2. A full annotation of the entire Code, by references to the decisions of our Supreme Court,
from the first volume to the date of publication. These references have been made fuller than
heretofore, so as to show not only the subject to which the decisions relate, but also, as far as
practicable, the points decided. The references are sometimes to the body of the decisions, and
not always to the page on which the case begins.
3. In addition-to the references to the Georgia Reports, we have referred to other authorities, a list
of which will be found in the Appendix. Some of these consirue our statutes, others show the
sources from which the sections of the Code were derived, or the changes made by the statutes,
and others construe statutes similai to our own.
4. We have retained the marginal references to the old statutes, thus enabling the practitioner,
officer, or citizen to trace the history of those sections of the (ode upon which there was
legislation prior to 1863, the letter " C in these references indicating Cobb's New Digest.
5. We have not changed the numbers of the sections of the Code of 1873. They have been
cited by our Supreme Court for nearly ten years, and hence they have been retained. The added
sections are indicated by letters, and are so referred to in the index. We have also retained the
the numbers of the sections of Irwin's Code of 1868, and have added the numbers of the sec-
tions of the Code of 1863, where the sections are still of force. Thus the Courts, lawyers, and
people of the State can see the law as it was in 1863, and in 1868. and what it is now. The first
number refers to the present Code, the second to Irwin's Code, and the third f o the (ode of 1863,
and where there has been any change in the section since 1863, there is a reference in the margin
to the statute or statutes by which the change was made.
6. In the Appendix, we have given the Constitution of 1877, and the Constitution of the
United States, both of which are annotated with references to the decisions of our own Supreme
Court, and the Supreme Court of the United States, and to standard text books on the subject.
7. The new Rules of Practice will be found in the appendix, with annotations and references
to the decisions of the Supreme Court of Georgia thereon.
8. We have also given a Table of Cases in the Supreme Court of Georgia, which have been
overruled, criticised, doubted, or explained, or the law of which has been changed or modified by
the Code of the State.
9. The Index has been the subject of anxious care and painstaking. It is considerably en-
larged, the heads multiplied, and the matter distributed under as many heads as it was thought
at all advisable. Under the principal or larger heads, we have endeavored to arrange the subdi-
visions alphabetically. Where the subdivisions were not numerous we have ignored the alpha-
betical arrangement. We have some doubt whether or not the profession will be pleased with
this alphabetical arrangement, as it often reverses, and sometimes confuses, the natural and
.
iv PREFACE.
logical order in which the law of a particular Chapter or Article comes in the Code. Be this as
it may, many lawyers thought the alphabetical arrangement would be best, and we have com-
plied with their wishes on the subject. We sincerely hope that the index will be satisfactory.
Let all who use the book be just enough to keep in mind, that the five thousand or more sections
of the Code cannot, with any sort of propriety, be re- written in the index. We feel very sure
that any one at all familiar with the contents and law of the Code, can, by the present index,
readily find any desired section.
In regard to the annotations, the plan has been to put under each section the authorities relat-
ing to, or illustrating its provisions ; the citations to the Georgia Reports coming first, and the
citations of other authorities following, but separated by sufficient space to indicate the difference
between the two sorts of references. The same order is observed in the General Notes at the end
of the articles or chapters, with the additional distinction that those citing the Georgia Reports
are headed "General Note," while those citing other authorities are headed so as to show the
topics, thus: "General Note on Principal and Agent."
There are so many collateral sections in the Code that it has been impossible to arrange under
•each section of the Code, where there are several kindred sections,all the authorities that might
be there grouped. Hence, in consulting the annotations, resort should be had not only to those
under a particular section but those under the collateral sections given in the margin. Thus,
the conclusiveness of judgments is stated in sections 2897, 3577, 3826, under each of which refer-
ences to authorities are given, and all of which should be examined by any one desiring to con-
sult the citations exhaustively. Sometimes, but not always, the notes themselves direct attention
to notes on same subject found elsewhere.
The mark/ indicates Ibid. Thus in 4 Ga., etc., 86, 9/27, the latter means 9 Ga., 27. The same mark
is used in the references to other series of reports.
The small letters a. b. c, etc. located in the sections at particular words or phrases are intend-
ed to guide the ^ye to authorities bearing on the subject of such particular words or phrases.
Additional information as to the general authorities cited will be found, after the Index, accom-
panying a list of abbreviations used, etc., which all who use these references are requested to
consult.
It is probably proper to say, that in dividing our labors on the Code, it was left to the under-
signed George N. Lester, to revise and arrange the statute law of the book, and to prepare the
index. Mr. Rowell prepared the annotations and references to the decisions of the Supreme
Court of Georgin,and the table of overruled and criticised cases, andMr. Hill prepared the notes and
references to the other authorities referred to. Mr. Hill also gave valuable assistance in arranging
the sub-divisions of the index in alphabetical order.
This edition of the Code, with its plan, arrangement, and execution, so far as it had gone when
he examined it, was submitted, by resolution of the General Assembly, to Hon. Clifford Anderson,
Attorney-General, and his report is hereunto annexed. GEO. N. LESTER,
C. ROWELL,
W. B. HILL.
Attorney-General's Office, Atlanta, Ga., July 13th, 1881.
To the Honorable, the President of the Senate and Speaker of the House of Representatives :
By direction of the General Assembly, I have carefully examined the revision prepared by
Messrs. Geo. N. Lester, Walter B. Hill, and C. Rowell, of the " Codeof 1873," asfaras it has been
completed. It comprises all the statute law believed to be now of force in this State. When
the Acts which may be passed during the present session of the General Assembly shall have
been added, the work will be finished. I do not hesitate to state that if what remains to be done
is as faithfully performed as that submitted for my examination, it will be as nearly accurate
and complete in all its parts as any human undertaking can reasonably be expected to attain.
It is believed that all those portions of the Code of 1873, which have been repealed by subse-
quent legislation, or superseded by the Constitution of 1877, have been omitted ; and that every
Act of a general nature passed since 1873, occupies its appropriate place in the new revision.
Pursuing the plan hitherto adopted in all cases of doubt whether statutes have been repealed or
are still of force, they have been retained, to be passed on by the Courts. I have not had time
since the work was submitted to me to examine all the marginal notes of reference to the decis-
sions of the Supreme Court, and tracing the history of particular legislation, I have formed my
opinion of this part of it from numerous specimens submitted to me by the revisers. On the whole,
I cordially commend the new revision to the favorable action of the General Assembly. It is timely,
if not absolutely necessary, and the demand for such a work is general if not universal.
Very respectfully, CLIFFORD ANDERSON, #
Attorney- General of Georgia.
PREFACE.
PREFACE TO THE ORIGINAL CODE.
By an Act of the General Assembly, assented to 9th December, 1858, provision was made for
the election of three Commissioners, "to prepare for the people of Georgia a Code, which should,
as near as practicable, embrace, in a condensed form, the Laws of Georgia, whether derived
from the Common Law, the Constitutions, the Statutes of the State, the Decisions of the Supreme
Court, or the Statutes of England of force in this State."
David Irwin, Hon. Herschell V. Johnson and Iverson L. Harris were elected Commissioners,
under the provisions of this Act. The last two named, declining the position, his Excellency,
Governor Brown, supplied the vacancies by the appointment of Thomas R. R. Cobb and Richard
H. Clark, who were also elected by the Legislature at its session next after they were appointed.
Thus organized, the Commissioners commenced the work assigned them.
Looking alone to the words of the Act, the object contemplated by the Legislature swelled
into a project, the magnitude of which would have deterred the boldest adventurer, if its accom-
plishment did not strike his mind as being utterly impossible. The Commissioners, however,
did not believe that such a construction of the Act was a proper interpretation of the Legislative
will, but construed it as requiring a Code which should embody the great fundamental principles
of our jurisprudence, from whatsoever source derived, together with such Legislative enact-
ments of the State as the wants and circumstances of our people had, from time to time, shown
to be necessary and proper.
Such a Code will furnish all the information, on the subject of Law, required either by the
citizen or the subordinate Magistrate.
Thus interpreting the Act of the Legislature prescribing their duties, the Commissioners
entered upon the discharge of those duties, seeking not only to condense and arrange the verbose
and somewhat chaotic mass of the Statutes of Georgia, but also to interweave therewith those
great leading principles of jurisprudence necessary to fill out and make perfect the body of our
laws, of which the Statutes constituted but disjointed parts.
In such an undertaking, the Commissioners could not hope for complete success ; but to
attain it as near as possible, they have spared neither pains-taking nor labor. How far they have
succeeded in their effort, is submitted to the judgment of a generous profession and a generous
public.
The Code is divided into four parts, as follows :
PART I. — The Political and Public Organization of the State : Which treats of the
Boundary, Divisions, Sub-divisions of the State, and the Municipal Organization and Regulations
thereof.
PART II. — The Civil Code : Which treats of Rights, Wrongs, and Remedies.
PART III. — The Code of Practice: Which treats of the Various Methods of Enforcing
Rights and Redressing Wrongs, together with the Law of Pleading and Evidence, and the Prac-
tice of the Courts.
PART IV. — Penal Laws: Which treats of Crimes and Misdemeanors, Trial and Punishment,
and is sub-divided into: First — Penal Code for the Trial and Punishment of white persons,
to which is added a XVI Division, containing the Proceedings in Preliminary Courts. Second —
Laws for the Government of the Penitentiary. Third — Penal Code for Slaves and Free Persons
of Color.
In the preparation of this work, the Commissioners have endeavored to arrange the various
subjects under appropriate Titles, Chapters, Articles, and Sections, except the Penal Code, in
which, for the purpose of convenient reference, the original Divisions have been retained.
The paragraphs are numbered from the beginning to the end of the book.
Thus prepared, the Code, after a thorough and laborious examination by a Legislative Com-
mittee, was submitted to the Legislature, and on the 19th of December, 1860, was "adopted as
the Code of Georgia, to be of force and take effect on the 1st day of January, 1862."
The adopting statue further provided, that all laws and resolutions of a public and general
cha"acter, passed at the session of the Legislature in the year 1860, and also the Laws of Georgia
having reference to the city of Savannah, should be incorporated in and made part of the Code,
and that the duties and powers of the Commissioners should be continued to that end, with au-
thority to place the same in the Code, in proper form and connection, and to correct any conflicts
that might be created thereby, with existing provisions.
On the 18th of March, 1861, a Convention of the People, then in session,
Resolved, That in the publication of the Code, it should be made to conform to the Govern-
ment of the Confederate States, instead of the Government of the United States, from which
Georgia had then but recently seceded, and also that the Constitution of the Confederate States
should be published as part of the Code.
A compliance with these provisions required an almost entire revision of the Code, and
added greatly to the labor, as well as to the difficulties in the way of perfect success.
It is but an act of justice to the Publishers to state that the typographical errors which appear
in the book are mainly attributable to the frequent change of printers during the progress of its
publication, resulting from the excited and unsettled stateof our national affairs. No less than
eleven printers, who were at one time or another engaged in printing this Code, are now in the
service of the Confederate States.
The errors alluded to have been corrected in an Errata, which will be found at the end of the
index, and to which the special attention of the reader is invited.
vi PREFACE.
Many of the rules of the Supreme and Superior Courts, having been superseded by legislative
■enactments, and decisions of the Courts, and others being embodied in this Code under appro-
priate heads, it is believed that the rules of both Courts should undergo a revision by the proper
authorities, and therefore they are omitted in this book.
As constant references will be made to the Code, not only by the Bench and Bar of the State,
but also by the various public officers and citizens who are not lawyers, the Commissioners have
endeavored to make the index copious and full, and to distribute the matter under as many heads
as it could be appropriately placed, in order that what is sought for may be readilv found.
The Commissioners submit to the people of Georgia the result of their labors, and ask for it a
patient examination, sufficient, at least to understand the plan, arrangement and execution of
the work; and if, after that, it be not approved by the public, we can but regret it.
DAVID IRWIN,
THOMAS R. R. COBB,
R. H. CLARK.
REPORT OF THE COMMITTEE.
To the General Assembly of the State of Georgia :
The Committee appointed under the resolution of the last session of this General Assembly
(assented to 16th December, 1859.) to meet the Commissioners appointed under an Act to provide
for the Codification of the Laws of Georgia, (approved 19th of December, 1858,) at the capitol in
Milledgevilie, at least twenty days before the meeting of this present session of the General As-
sembly, for the purpose of revising and fully examining said Code, respectfully report :
That they have discharged the duty devolved upon them by said resolution, and the following
is the result of their investigations:
Referring to said Act of the 9th of December 1858, your Committee find that it was made the
duty of the Commissioners thereby appointed, to prepare for the people of Georgia a Code which
shall, as near as possible, embrace in a condensed form the Laws of Georgia, whether derived from
the Common Law, the Constitution of the State, the Statutes of the State, the Decisions of the
■Supreme Court, or the Statutes of England of force in this State.
With this enlarged and extensive chart of the powers and duties of said Commissioners before
your Committee, and as directory as well to compilation as in the revision and examination of
said Code, they caused each and every section thereof to be fully and carefully read before them ;
and they present as their unanimous conclusion, that said Commissioners have kept themselves
fully and carefully within the pale of the powers and duties conferred.
The mingling together in condensed and intelligible form the Common and Statute Laws,
Constitutional Provisions, and Court Decisions, and thus to place the whole body of all the law
within the reach of the people, was, in the opinion of yonr Committee, the great end aimed at
by the Legislature, and this end has been kept in view, and, to every practicable and attainable
extent, ably and efficiently accomplished by the Commissioners.
A Code so entirely extensive in its aims and purposes as to define in intelligible form and lan-
guage out of the body of the great system of the Common Law existing time whereof the mem-
ory of man runneth not to the contrary, mischiefs and rights, duties and obligations, and to pre-
sent in intimate and close connection therewith Constitutional and Statutory Provisions, and the
judicial exposition and construction thereof for their redress and enforcement, is of rare, if not
in the Code now presented, of original occurrence. Your Committee intended to say that it has
not been before s > extensively attempted, that the citizen should be referred to the whole em-
bodiment of the law in a single volume to be exactly informed what are his rights in any and
every exigency, anu, what his remedies for their enforcement and protection. And it need hardly
be added that to the large degree in which the offered Code accomplishes this great desideratum,
it must and will commend itself to public approval and acceptance. As your Committee have
said, in the discharge of the duties devolved upon them, they caused each and every section of
the Code to be read before them, and at the option, or upon the suggestion of any one of its
members, its sections were discussed, canvassed, and amended, enlarged and restricted by a vote
of the majority ; and your Committee will add, that the codifiers themselves, being present, with
scarce a single exception, approved, acquiesced in, and adopted all such suggestions, alterations,
modifications, enlargements, or restrictions, as your Committee thought proper to make.
Beyond what has been said, the limits of this report will not authorize your Committee to
enlarge.
As "the result of their investigations," and in full view of the delicate responsib : lities
thereby incurred, especially if their further suggestions shall receive legislative approval, they
do not hesitate, with entire unanimity, to report that the Commissioners have ably, faithfully,
and efficiently discharged the arduous duties imposed upon them, and with like unanimity
recommend the legislative sanction and adoption of that which they present as " The Code of
Georgia."
PREFACE. vii
In the further anxious discharge of their duties, the thoughts of your Committee have been
necessarily turned to consider the mode in and by which this can be done.
The importance of a knowledge of the contents of the Code to a satisfactory and well consid-
ered vote for its adoption, by each member of the Legislature, has, on the one hand, pressed
strongly upon us, while on the other, the utter impossibility of canvassing and considering,
within any reasonable period of time, the four thousand paragraphs embraced therein, has pre-
sented an obstacle almost, if not absolutely insurmountable.
The mere reading of the manuscript, to inform and enlighten the legislative mind as to its
provisions, would occupy more than half the time limited by the Constitution to a legislative
session. Such reading,, accompanied by the unquestioned power to amend and discuss, according
to the varied opinions and policy of our three hundred members, it need hardly be said, would
occupy, to say the very least, more than all the time thus limited.
In the opinion, then, of your Committee, to read without amendment and discussion, would
be idle and useless waste of time and money; and to read, amend and discuss, impracticable.
Entertaining these opinions, and seeking the best solution of the difficulties, your Committee
were naturally led to refer to the precedents set and acted upon by your sister States under similar
circumstances. So far as such precedents will sanction and justify the recommendation to which
they are led, they have been pleased to find that, in almost every State, Revised Codes have been
adopted by a simple Legislative Act, such as your Committee offer with this report, and upon
the action and report of a committee, leaving: other considerations, amendments and discussions,
of course, to the power and wisdom of the Legislature after publication.
With the exception of Virginia,. your Committee believe that the action of the States has
been uniformly such as they now recommend. In that State the other policy was pursued.
Each section of its Code was subjected to a thorough revision, and separate adoption by its
whole Legislative Department. The result was that its session was extended to a period over
six months, and, of course, at a very great cost to the State. Your Committee, from a partial
and cursory examination of the Code of that State, will be permitted to add, in no censorious
spirit, that the benefit of this course is not manifest in the results. Other Codes adopted upon
the plan which your Committee feel constrained to suggest, compare most favorably with this
Code of Virginia.
Your Committee believe that they could give satisfactory reasons for the opinion entertained,
that the labor, time and money which might be expended in a legislative reading, revision and
examination of the Code, might be really detrimental, rather than beneficial, to its efficiency,
harmony, and entire plan and structure ; but the limits of a report forbid all such attempts.
If the new Code now presented were a new system of jurisprudence, or had the Commission-
ers attempted to graft upon our system any new features extracted from others,and unharmoni-
ous with our own, or even if alterations in a well defined public policy had been attempted,
your Committee would have paused, and hesitated to recommend the mode of adoption suggested,
without at least calling the special attention of the Legislature to such new and essential
changes.
Bat at an early stage of our revision and examination, the codifiers announced the leading
principle by which they had attempted to guide their labors, and your Committee report the
same prominent in all the amendments and changes made at their suggestion. This principle
was, to attempt no change or alteration in any well defined rule of law which had received leg-
islative sanction or judicial exposition, and to add no principle or policy which had received the
condemnation of the former, or was antagonistic to the settled decisions of the latter.
The prominent and leading power of change exercised in construction and revision has been
to cut and unravel Gordian knots, resulting from conflicting decisions of the Courts; to reconcile
actual and apparently discordant legislation, harmonizing all conflicts to what seemed to be settled
and favored public policy ; to remedy existing defects by wise and harmonious provisions ; and
to supply omissions which the practice and experience of the Courts had discovered and made
manifest in existing legislation. In short, the great end and aim has been to reconcile, harmon-
ize, render consistent, the body of the law, so as to give shape and order, system and efficiency, to
the sometimes crude, and often ill expressed, sovereign will of the State.
A settled conviction on the mind of your Committee that the codifiers have, to a degree as
complete and perfect as might reasonably be expected, accomplished these and like ends, has won
for the Code, as an entirety, their cordial and unanimous approval. Your Committee will not
conceal that some particular sections and provisions have not met this unanimous concurrence.
When differences arose, careful and anxious consideration and discussion followed, and minori-
ties did not hesitate to yield— all being satisfied that, as a whole, the Code was entitled to, and
should receive, their unanimous and unqualified approbation and recommendation.
Your Committee fully believe that such would be the result of any examination and revision
by the Legislative Department.
Your Committee do not deem it inappropriate to their duties to add, that the proper printing
and publication of the Code, if adopted, becomes a subject of much interest and importance.
Its plan and structure accompanies this report. A reference thereto will render most manifest
the necessity, in the publication, of rigidly adhering to the plan. The numerical order of its
paragraphs, and its references in one title, "section, or paragraph, to another, must be preserved.
In the use and value of the Code, its Index becomes of the highest importance.
These, and like considerations and reflections lead your Committee to suggest that none other
than those who constructed the Code, who devised its plan, and are familiar with its details and
manuscript, can so well superintend its publication and prepare its Index. Your Committee
have further to add, that it is provided in the Code itself that it shall not take effect until the 1st
of October, 1861, thus giving time for its publication.
It is further provided, and your Committee think wisely, to meet any insufficiency of the
Code, that all questions not embraced or provided for therein, shall be decidecfapd settled by
existing laws, and that the Code does not interfere with, or in any manner abrogate or repeal,
local legislation. jfcv */*'"
.
viii PREFACE.
If in the views thus presented by your Committee, they shall have the concurrence of the
Legislature, they present as part of this report, a bill to adopt the Code, and hill to provide for
its publication.
All of which is respectfully submitted. HINES HOLT,
DANL. S. PRINTUP,
W. W. PAINE,
Committee on part of Senate.
GEO. N. LESTER,
ISHAM S. FANNIN,
W. G. DELONY,
M. W. LEWIS,
C. N. BROYLES,
C. J. WILLIAMS,
Committee on part of House.
THE ACT ADOPTING THE CODE.
An Act to approve, adopt and make of force, in the State of Georgia, a Revised Code of Laws, prepared
under the direction and by authority of the General Assembly thereof ; and for other purposes there-
with connected.
Section I. The General Assembly of the State of Georgia do enact, That the Revised Code of
Laws prepared under its authority, by Richard H. Clark, Thos. R. R. Cobb, and David Irwin,
Esqs.,and revised and fully examined by its committee, and recommended and reported for
adoption (the manuscript whereof now being on file in the Executive Department) be, and the
same is hereby, adopted as the Code of Georgia ; to be of force and take effect on the first of Jan-
uary, 1862.
Provided, That the adoption of the Code shall not operate so as to repeal an Act entitled '■ An
Act to define the liability of the husband for the debts of the wife, and to define the liability of
the property received through the wife for the debts of the husband existing at the time of the
marriage," approved 28th February, 1856; or to punish any Judge, Justice, or Minister, for
joining in marriage any female under the age of twenty-one without the consent of her father
or guardian.
Section 2. And be it further enacted, That all laws and resolutions of a public and general
character passed at this present session of the General Assembly, be incorporated in and made
part of said Code ; and that the duties and powers of the codifiers be continued to that end,
with authority to place the same in proper and appropriate form and connection, and to correct
any conflicts which may be created thereby with its existing provisions. And that the per-
formance of the further duties by said codifiers, as required in this section, be submitted to the
revisal, examination and approval of His Excellency, the Governor, before the publication of
said Code.
Section 3. Be it further enacted, That the laws of the State of Georgia, having reference to the
city of Savannah, etc, as codified by order of the City Council of Savannah, by the city attor-
ney of Savannah, be, and the same is hereby, declared and made a part of the Code of Georgia,.
and the laws thereof, the manuscript copy whereof is now on file in the Executive Office.
Assented to December 19th, 1860.
N
Preface to the Revised Edition.
The late war and its results, having produced so many radical changes in the Constitution and
Laws of Georgia, a revision of the Code of the State became a matter of necessity. Prompted
by an appreciation of that necessity, as well as the suggestions of his friends, the undersigned
entered upon the work of carefully revising said Code, so as to exclude therefrom all such parts
as had been repealed or superseded, and to include all laws passed since the adoption of said
Code, which were of force at the adjournment of the General Assembly of 1866, thus making the
Code conform to the 5th Clause of the 1st Section of the 5th Article of the Constitution of Geor-
gia, adopted by the Convention of 1865. All parts of the Code that have been repealed or super-
PREFACE. ix
seded have been left out, and all laws still of force, that were never embodied in the Code, have
been arranged under appropriate heads. The head-notes and sections have been re-arranged and
re-numbered, and the new laws are included in brackets, with references to the authorities in
which they may be found. A new and enlarged index has been made, which, it is hoped, will
enable any lawyer or citizen readily to find the law on any given subject. By resolution of the
General Assembly, His Excellency, Governoi Jenkins, appointed a committee, composed of Gen.
Andrew J. Hansell, Col. Logan E. Bleckly, and Col. Nathaniel J. Hammond, to examine the work;
and after a careful and elaborate examination, this committee of distinguished lawyers reported
to His Excellency that the revision of the Code was thorough and accurate. The undersigned
did not feel at liberty to change even the wording of the laws passed since the adoption of the
Code, but embodied them just as they were enacted by the Legislature. The work has been tedi-
ous and difficult, and the undersigned does not claim that it is perfect; but, having done the
very best that time, circumstances, and his official duties would allow, he places it before a gen-
erous profession and an indulgent people. DAVID IRWIN.
PREFACE TO REVISED AND ANNOTATED EDITION.
Since the publication of Irwin's Revised Edition of the Code of Georgia, many and great
changes have taken place in the Constitution and Laws of the State. That edition is entirely
exhausted, and many of the officers, lawyers, and people are not supplied with it. A second
revised edition would, therefore, seem to be a necessity. These considerations, coupled with a
general demand therefor, induced the undersigned to prepare a second revision of" the Code,
containing the Constitution and Laws of the State, including all general Acts of the Legislature
of 1873. The profession and people having become familiar with the original plan and arrange-
ment of the Code, we have deemed it best to let them remain unchanged. We have transferred
the side-notes to the beginning of the sections, and have placed in their stead, carefully prepared
references to the Statutes of the State, from which the law of the Code was originally derived,
thus furnishing ready means of tracing the history of any particular section, and of placing
upon it a proper construction. Reference is also made to collateral or cognate sections in the
margin, which we think will greatly facilitate a proper and thorough understanding of the Law
of our State. We have also prepared references to the decisions of the Supreme Court of Georgia
up to and including those made at the January Term, 1873. The decisions which bear directly
upon a particular section or part of a section follow immediately after it, in small print, whilst
those decisions which do not bear directly upon the subject of a particular section, or part of a
section, but refer to the subject of a Chapter or an Article generally, will be found in a general
note at the end of such Chapter or Article. In the Appendix we have placed the Constitution
of Georgia, adopted and ratified in 1868; the Constitution of the United States, with the recent
amendments thereto; and the Rules of the Superior and Supreme Courts of the State, up to
July, 1873, together with references to decisions of our Supreme Court on these Constitutions
and Rules of Practice. The reader will also find in the Appendix, references to decisions of the
Supreme Court, on subjects not in the Code, but which are of special interest to the Georgia
lawyers and people. In the present edition we have preserved the numbers of the sections as
they occur in Irwin's Revised Code, noting such as have been repealed or superseded, with a
reference to the repealing or superseding Act. This will be found an especial convenience
in applying such decisions of our Supreme Court as refer to the sections of Irwin's Code by
numbers.
In preparing this revision of the Code, it has been our purpose to compass the three things
which the Hon. Attorney-General says, in his report to the Governor, he was especially careful
to ascertain by his examination of it. We may have stricken from the Code something that is
still law, and we may, possibly, have retained in it something that is not law, but we confidently
submit our work to the profession and people of Georgia, as a reliable source, from which a
knowledge of the law of the Commonwealth maybe obtained. We have stricken from the Code
everything upon the subject of bail in civil cases, except that which relates to bail in actions for
personalty, deeming it repealed by that section of the Constitution which declares, that 'there
shall be no imprisonment for debt." Some able lawyers have suggested that this provision of
the Constitution does not repeal the law of bail in actions ex delicto. Be this and like cases as
they may, we are consoled by the reflection, that if we have excluded what is law, it is law still,
and if we have left anything in the book that is not law, the fact of it being retained does not
make it law. All statutes up to 1851 are referred to in Cobb's New Digest of the Laws of Geor-
gia — indicated by the letter C. The Index to the Code has been revised, the heads multiplied,
and the subdivisions improved, and we are encouraged to hope, that by the Index to the present
edition, any law in the book can be readily found. The task of revision and annotation has
been hard and difficult, and we give our work to the public with the earnest hope, that whatso-
ever of the errors and imperfections may be found in it, may be viewed with the liberality and
indulgence called for by the magnitude and difficulties of the undertaking.
DAVID IRWIN,
GEO. N. LESTER,
WALTER B. HILL.
PREFACE.
ATTORNEY-GENERAL'S REPORT.
Atlanta, Ga., February 7, 1873.
His Excellency, James M. Smith, Governor, Atlanta, Ga. :
For a month, just past, I have been engaged in the examination of the revision of " Irwin's
Code," made by Messrs. David Irwin, George TNT. Lester and Walter B. Hill, submitted to me by
your Excellency, under a resolution of the General Assembly, approved August 26th, 1872.
The examination was conducted by Col. G. N. Lester, representing the revisers. Having
completed it I have the honor of submitting to your Excellency the following report:
I was careful to ascertain especially three things: First — That all the old law which had been re-
pealed by the Constitution of 1868, and Acts passed under it,, and all inconsistent with the Consti-
tution of the United States and laws thereof, was stricken out, and that every part of Irwin's Code
clearly inconsistent with said Constitution and Laws, was so changed as to make this revision
consist and harmonize with the fundamental law. Secondly — That all general Acts passed un-
der the Constitution of 1868, and still of force, were incorporated into this revision in their ap-
propriate places, according to the plan and arrangement of Irwin's Code, as contemplated by
said resolution ; and thirdly — That it contained, also, so much of the Statute Law of this State
of force, in 1860, as is not expressly superseded by, nor inconsistent with, the present Code,
though not embodied therein.
In doing this I have sought and obtained valuable aid from several of the leading minds in
the State.
All statutes of doubtful constitutionality, and all laws and parts of laws not repealed
expressly or by obvious and necessary implication, have been retained in this revision. The re-
visers and I agree that the Courts alone should pronounce upon their validity.
The examination has been careful and elaborate. From it, I take pleasure in reporting that
the revision has been faithfully and well performed and that it is accurate and thorough. The
resolution did not contemplate an examination and report upon the references to collateral and
cognate sections, the citations of the Statutes upon which the sections stand and the decisions of
the Supreme Court upon them. Yet I made such an examination of various parts of the revision.
From this I am satisfied that these annotations and references are full and accurate if not ex-
haustive of all references, citations and annotations proper to be made according to the plan of
the work.
They form a new and excellent addition to the Code and greatly increase its value. Said res-
olution properly declared that a revision was a necessity; and I am persuaded, that this one will
satisfy the legal profession, the officers and citizens of the State, as an embodiment of all our stat-
utory law in a convenient and familiar form, and these references to the Statutes, of which it is
made and the decisions of our highest Court expounding them, makes this revision combine all
the benefits without the disadvantages consequent upon a codification of the laws of a State.
I have the honor to be etc.,
N. J. HAMMOND,
• Attorney- General of Georgia.
TABLE OF CONTENTS.
GENERAL PRELIMINARY PROVISIONS.
PART FIRST — The Political and Public Organization of the State.
PART SECOND— The Civil Code.
PART THIRD— The Code of Practice.
PART FOURTH— The Penal Laws.
PART FIRST.
THE POLITICAL AND PUBLIC ORGANIZATION OF THE STATE.
TITLE I. — Divisions and Jurisdictions.
PAGE. PAGE.
Chapter 1. Of the Boundary, Sovereignty
and Jurisdiction 10
Article 1. The boundary of the State 10
Article 2. The sovereignty and jurisdic-
tion of the State 11
Article 3. Coast survey 13
Chapter 2. The Political and Judicial Di-
visions of the State 14
Article 1. Counties 14
Article 2. Congressi onal Districts 16
Article 3. Judicial Districts and Circuits 17
TITLE II.— Citizenship.
'Chapter 1. Who are Citizens 19 | Chapter 2. Expatriation 19
TITLE III. — The Executive Department.
Chapter 1. The Governor, his Powers and
Duties 20
Chapter 2. The Executive Office, and res-
idence of Governor 25
Chapter 3. Fiscal Year and Reports 25
Chapter 4. State House Officers 26
Article 1. Secretary of State 26
Article 2. Treasurer 28
Article 3. Comptroller-General 33
Chapter 5. Of other officers of the Execu
Article 2. Governor's Messenger and
State House Guard 38
Chapter 6. General Regulations as to Offi-
ces and Officers 39
Article 1. Of Eligibility, Qualification,
Commissions, etc " 39
Article 2. Official Oaths 42
Article 3. Official Bonds, and Discharge
of Sureties, etc 43
Article 4. Delivery of bocks to succes-
sive Department 37 1 sors 46
Article 1. State Librarian 37
TITLE IV. — Legislative Department.
•Chapter 1. Of the General Assembly 48 Chapter 2. Subordinate Officers of the
General Assembly 51
XII
CONTENTS.
TITLE V. — Judicial Department.
1 ?
PAGE.
Chapter 1. General Provisions as to the
Judicial Power 52
Chapter 2. The Supreme Court and its
Article 4. "The Sheriff. 7.7.".".' .17 ..... ......... 59
Chapter 3. The Superior Courts and Offi-
cers 60
Article 1. The Judges 60
Article 2. The Clerks 64
Article 3. The Receiver 69
Chapter 4. The County Court and its Offi-
cers 71
Chapter 5. The Ordinary 84
Article 1. The Ordinary and his Court.. 84
Article 2. As Clerk 88
Chapter 6. Sheriffs and their Deputies 90
Article 1.
Judges
Article 2.
Article 3.
Chapter 7.
at Law
Article 1.
Article 2.
Article 3.
Chapter 8.
stables.
Article 1.
Public,
Article 2.
Chapter 9.
The Supreme Court and its
PAGE.
54
The Clerk 56-
The Reporter 57
State's Attorney and Attorneys
, 95-
Attorney-General 95
Solicitor-General 96
Attorneys at Law 99*
Justices of the Peace and Con-
, 108-
Justices of the Peace, Notaries
and their Courts 108*;
Constables 113-
Corporate Courts 115-
TITLE VI, — County Organization.
Chapter 1. Militia Districts 115
Chapter 2. Incorporation of Counties, Con-
tracts, and Property 117
Chapter 3. County and Municipal Bonds. 122
Chapter 4. Change of County Lines and
County Sites 123
Article 1. Change of County Lines 123
Article 2. Change of County Sites 125
Chapter 5. County Revenue 126
Article 1. From Taxation 126
Article 2. From other sources 129
Chapter 6. Certain County Officers 132
Article 1. Treasurer 132
Article 2. Surveyor 135
Article 3.
Chapter 7.
Ferries
Article 1.
Article 2.
Duties.
Article 3.
Article 4.
Article 5.
Regulat
Article 6.
Article 7.
Chapter 8.
Coroner 137
Public Roads, Bridges, and
139
' Public Roa^s777. 777777777 139
Road Commissioners and their
147
Bridges and Ferries 150
Railroad Crossings, etc 155
Railroads and Turnpikes, their
ion and management 157
Private Ways 164
Mining 167
The County Poor 170
TITLE VII. — Incorporation of Towns and Villages.
Chapter 1. Incorporation of Towns and Villages
172:
TITLE YIH.— Public Revenue.
Chapter 1. Taxation by the State 180
Article 1. Persons and Property Ex-
empt 180
Article 2. Persons and Property Taxed.. 181
Article 3. Taxes on Banks,Railroads,etc 185
Article 4. Taxes, how Returned and
Collected 188
Article 5. Delinquent Tax-payers and
Proceedings against them 197
Article 6. Delinquent Collectors and
Receivers, etc 201
Article 7. Tax Receivers 203-
Article 8. Tax Collectors 205-
Article 9. Compensation of Collectors
and Receivers 208
Article 10. Miscellaneous Provisions 208-
Chapter 2. Revenue from other Sources... 210'
Chapter 3. State Depositories 211
TITLE IX.— The Public Debt.
Chapter 1. The Public Debt 213
TITLE X.— Public Property.
Chanter 1. Public Buildings 215
Chapter 2. The Lands of the State 215
Chapter 3. The Western and Atlantic Rail-
road, anl itsGovernment 216
Chapter!. Stocks and other Funds 223
Chapter 5. Other Public Property 224-
TITLE XI.— Public Printing.
Chapter 1. Public Printing, how done 224 I Chapter 2. Distribution of Laws and other
Documents 226
CONTENTS.
XIII
TITLE XII.-
PAGE.
Chapter 1, Persons Subject to Military
Duty, Exemptions, etc 228
•Chapter 2. Military Organization 230
Article 1. Military Force and how Com-
posed 230
Articled The Volunteers 231
Article 3. . Flag of the State 240
Articled The Militia 240
Article 5. Elections 242
Public Defense.
PAGE.
Chapter 3. Organization of the Staff of
the Militia 243
Chapter 4. Courts Martial 245
Chapter 5. Preservation of Order at Pa-
rade 246
Chapter 6. Provisions of Local Applica-
tion 247
Chapter 7. Miscellaneous Provisions 249
Chapter 8. Public Arms and Arsenals 251
TITLE XIII.— Education.
Chapter 1. University of Georgia 253
"Chapter 2. Academy for the Blind 256
Chapter 3. Academy for Deaf and Dumb. 257
Chapter 4. County Academies 259
Chapter 5. Public School System 260
TITLE XIV.— Elections by the People.
•Chapter 1. Qualification of Voters 272
Chapter 2. Elections of Members of the
General Assembly 273
-Chapter 3. Elections for Governor, Mem-
bers of Congress, Electors of President
and Vice-President 276
Article 1. Provisions applicable to all... 276
Article 2. For Governor 277
Article 3. For Members of Congress 278
Article 4. Electors for President and
Vice-President 279
Chapter 4. For Ordinary and County Offi-
cers 280
Chapter 5. Justices of the Peace and Con-
stables 280
Chapter 6. Contested Elections 281
TITLE XV. — Elections by the General Assembly.
'Chapter 1. For United States Senators.... 283 | Chapter 2. Other Officers...
284
TITLE XVI. — Police and Sanitary Regulations.
'Chapter 1. Lunatic Asylum.... 285
Article 1. The Trustees 285
Article 2. Superintendent 287
Article 3. Admission and disposition of
patients 287
Chapter 2. Health, Hospital, Infection and
Quarantine 290
•Chapter 3. Practice of Medicine, how reg-
ulated 293
•Chapter 4. Dentists and Practice of Den-
tistry 295
Chapter 5.
Chapter 6.
eers
Chapter 7.
Chapter 8.
Chapter 9.
Chapter 10.
Chapter 11.
Retail License
Vendue Masters and Auction-
296
297
Estrays 298
Marks and Brands 299
Enclosures and Fences 300
Firing the Woods 305
Mills and Millers 305
306
Chapter 12. Gunpowder.
TITLE XVII. — Regulations of Agriculture, Trade and Commerce.
•Chapter 1. Agriculture, Banks and Bank-
ing 307
Article 1. Department of Agriculture.. 307
Article 2. Bank Returns 309
Article 3. Obligations and Penalties 311
Article 4. Forfeiture of Charters and
Liability of Stockholders 313
-Chapter 2. Notaries Public 318
Chapter 3. Ships and Seamen 320
Article 1. Pilotage 320
Article 2. Seamen 327
'Chapter 4. Inspection 329
Article 1. Fertilizers and Chemicals 329
Article 2. Flour and Grain 331
Article 3. .Wood, Tobacco, etc 333
Article 4. Liquors, Inspection 340
Chapter 5. Weights and Measures 341
Chapter 6. Regulations for Particular
Branches of Trade and Agriculture.... 343
Article 1. Cotton, Rice, etc 343
Article 2. Cultivation of Rice 345
Article 3. Oysters and Turtles 347
Article 4. Fishing 348
Article 5. Boats and Crews 348
Article 6. Peddlers , 349
TITLE XVIII. — Salaries and Fees of Officers.
•Chapter 1. Executive Department and
Officers thereof 350
Chapter 2. Other Officers Appointed by
the Governor , 351
Chapter 3. Officers not Appointed by the
Governor, but Paid by the State 351
Chapter 4. The Legislative Department... 351
Chapters. The Judicial Department 352
;!
XIV
CONTENTS.
PART SECOND.
CIVIL CODE.
TITLE I.— Of Persons.
PAGE.
Chapter 1. Of Different Kinds of Persons,
Their Status and Rights 354
Article 3. Of Persons of Color 356
Article 4. Of Corporations 358
PAGE'.
Article 1. Of Citizens 354
Article 2. Of Aliens and Residents 355
Chapter 2. Of Domicile, and the Manner
of Changing the same 389>
TITLE II.— Of the Domestic Relations.
Chapter 1. Of Husband and Wife 391
Article 1. C f Marriages and Divorce 391
Sec. 1. Marriages, how and by Whom
Contracted 394
Sec. 2. Divorces, and how Obtained... 396
Sec. 3. Of Alimony 399
Article 2. Of the Rights and Liabilities
of Husband and Wife, and Herein of
Dower 402
Article 3. Of Marriage Contracts and
Settlements 410
Chapter 2. Of Parent and Child 415
Article 1. Legitimate Children, and
Herein of Adoption 415
Article 2. Illegitimate Children, or Bas-
tards 418
Chapter 3. Of Guardian and Ward 419
Article 1. Guardians and Minors 419
Article 2. Guardians of Lunatics and v
Idiots, etc 430
Article 3. Foreign Guardians 433
Chapter 4. Of Master and Servant 436
Article 1. Indented Servants and Ap-
prentices 436
Article 2. Laborers in Factories 43&
TITLE III. — Of Relations Arising from Other Contracts-
Chapter 1, Of Partnership 440
Article 1. General Principles 440
Article 2. Rights and Liabilities of Part-
ners among themselves 443
Article 3. Rights and Liabilities as to
Third Persons , 445
Article 4. Limited Partnership 448
Chapter 2. Of Debtor and Creditor 454
Article 1. General Principles 454
Article 2. Acts void against Creditors... 458
Article 3. Mortgages 463
Article 4. Sales to secure Debts 469
Article 5. Other Liens 470
Article 6. Homestead and Exemption.. 482
Article 7, Property Exempt from Sale.. 495
Articles. Interest and Usury 499
Chapter3. Of Bailments 503
Article 1. General Principles 503
Article 2. Of Carriers, and Herein of
Railroad and Steamboat Companies 504
Article 3. Of Hiring 512
Article 4. Of Deposits .„« 515
Article 5. Of Loans * 519*
Article 6. Of Pledges or Pawns 520
Chapter 4. Of Principal and Surety 523
Article 1. Of theContract 523
Article 2. Relative Rights of Creditor
and Surety 524
Article 3. Rights of Surety against Prin-
cipal 527
Article 4. Rights of Sureties among
themselves 529-
Article 5. Rights of Sureties as to Third
Persons 529
Chapter 5. Of Principal and Agent 532
Article 1. Relation of Principal and
Agent among themselves 536
Article 2. Rights and Liabilities of
Principal as to Third Persons 536
Article 3. Rights and Liabilities of
Agent as to Third Persons 539
Article 4. Of Overseers 541
TITLE IV. — Of Property and the Tenure by which it is Held.
Chapter 1. Of Realty 544 | Chapter 2. Of Personalty
549-
TITLE V. — Of Estates, and the Rights Attached thereto.
Chapter 1. Of Absolute Estates, or in Fee
Simple 551
Chapter 2. Of Estates for Life 553
Chapter 3. Of Estates in Remainder and
Reversion 555
Chapter 4. Of Estates for Years 558
Chapter 5. Of Landlord and Tenant 559
Chapter 6. Of Estates upon Condition 563
Chapter 7. Of Tenancy in Common 564
Chapter 8. Of Trust Estates 566
Article 1. Of their Creation and Nature 566-
Article 2. Of Trustees, Appointments,
Powers, etc 569»
CONTENTS.
xv
TITLE VI.— 0/ Title, and the Mode oj Conveyance.
PAGE.
IChapterl. Of Grants 577
Article 1. Grants Generally 577
Article 2. Of Head Rights 580
Article 3. Of Land Lotteries 582
Articled Of Processioning 583
Article 4. Of Devises and Legacies 601
Article 5. Of Revocation 606
Article 6. Of Nuncupative Wills 608
Chapter 3. Of Title by Descent and Ad-
ministration 609
Article 1. Of Inheritable Property, and
the Relative Rights of Heir and Ad-
ministrator 609
Article 2. Of Administration 612
Sec. 1. Different kinds of Adminis-
trators, and Rules of Granting Let-
ters 613
Sec. 2. Of their Appointment, Bonds,
and Removal 616
Sec. 3. Inventories, Appraisements,
and Returns 619
Sec. 4. Of Managing the Estate and
Paying Debts 621
Sec. 5. Of Receiving and Making Ti-
tles on Bonds for Titles 627
Sec. 6. Of Administrator's Sales 628
Sec. 7. Of Distribution, Advancements
and Provisions for Family 632
PAGE
Chapter 2. Of Title By Will 585
Article 1. Of the Nature of Wills, by
whom and how executed 585
Article 2. Of Probate and its effect 592
Article 3. Of the Executor 597
Sec. 8. Of Commissions and Extra
Compensation 638
Sec. 9. Of Final Settlements and Re-
ceipts, and Herein of Interest 639
Sec. 10. Of Letters of Dismission and
Resignation -642
Sec. 11. Of Removing Proceedings to
another County 643
Sec. 12. Of Foreign Administrators... 644
Chapter 4. Of TitJe by Judicial Sale 647
Article 1. Advertisement of Sales, Cita-
tions, etc 649
Chapter 5. Of Title bv Contract 650
Article 1. Of Private Sales 650
Article 2. Of Gifts 660
Chapter 6. Of Title by Escheat and For-
feiture 662
Chapter 7. Of Title by Prescription 663
Chapters. Of Conveyance of Title 669
Article 1. Generally 669
Article 2. Of Covenants and Warranty 672
Article 3. Of Resignation 673
TITLE VII.— Of Contracts.
Chapter 1. General Principles... 667
Chapter 2. Of the Parties 680
Chapter 3. Of the Consideration 682
Chapter 4, Of Illegal and Void Contracts 684
Chapter 5. Of Construction of Contracts.. 687
Chapter 6. Court Contracts 689
Chapter 7. Of Negotiable Contracts 691
Article 1. Of Negotiable Paper, and
how Transferred 691
Article 2. Of Indorsees Notice and Pro-
test 695
Article 3. Of the Rights of Holders 698
Article 4. Of Damages 700
Chapter 8. Of Contracts of Insurance 701
Article 1. Fire Insurance 701
Article 2. Life Insurance 704
Article3. Marine Insurance 706
Article 4. Mutual Insurance 707
Article 5. Insurance Co., etc 708
Chapter 9. Of Defenses to Contracts 713
Article 1. Denial of the Contract 713
Article 2. Denial of its Obligation, and
Herein of Acts of Opposite Party 714
Article 3. Payments, and Herein of Ap-
propriation of Payments 715
Article 4. Performance and Herein of
Tender 718
Article 5. Accord and Satisfaction 719
Article 6. Arbitrament and Award 721
Article 7. Pendency of another Action,
and Former Recovery 723
Articles. Set off and Recoupment 724
Article 9. Limitation of Actions 728
Seel. Periods of Limitation 728
Sec. 2. Exceptions and Disabilities.... 733
Sec. 3. New Promise 736
Chapter 10. Of Breach of Contract and
Damages 737
TITLE VIII. — Of Torts, or Injuries to Person or Property.
Chapter 1. General Principles 741
Chapter 2. If Injuries to the Person 745
Article 1. Physical Injuries 745
Article 2. To Reputation 748
Sec. 1. Libel and Slander 748
Sec. 2. Malicious Prosecution 750
Article 3. Other Injuries to the Person. 751
Chapter 3. Of Injuries to Property 755
Article 1. To Real Estate 755
TITLE IX.
Chapter 1. General Principles 772
Chapter 2. Of Discovery 778
Chapter 3. Of Perpetuation of Testimony 780
Chapter 4. Of Accident and Mistake 781
Chapter 5. Of Account and Set-off 784
Chapter 6. Of Administration of Assets.. 786
Article 2. To Personalty Generally 757
Article 3. By Railroad Companies 760
Chapter 4. Of Defenses 766
Article 1. Justification 766
Article 2. Satisfaction, and Herein of
Tender 766
Article 3. Limitation of Actions 767
Articled Other Defenses/. J 768
Chapter b.^JdL Damages i^^:'.^... 768
Chapter 7. ,Of Charities 791
Chapter 8. Of Election..., 792
Chapter 9. Of the Execution of Powers... 793
Chapter 10. Of Fraud 794
Chapter 11. Of Partition 796
Chapter 12. Of Specific Performance 797
<,
XVI
CONTENTS.
TITLE IX.— Of Equity — continued.
PAGE.
Chapter 13. Of Trusts and Trustees 799
Chapter 14. Of Extraordinary Remedies.. 800
Article 1. Of mandamus, quo warranto
and Prohibition 800
PAGE.
Article 2. Of Injunctions 800
Article 3. Of ne exeat and quia timet 813
Article 4. Of Bills of Peace and Inter-
pleader 812
PART THIRD.
THE CODE OF PRACTICE.
TITLE I. — Of the Judges, Sessions and Adjournments of Courts.
Chapter 1. Of the.Supreme Court 814
Chapter 2. Of the Superior Court 815
Article 1. Sessions and Adjournments of
the Superior Courts 815
Chapter 3. Of the Judges of the Superior
Courts 816
TITLE II.— Of Actions.
Chapter 1. General Principles 818
Chapter 2. Of Attachments 822
Article 1. Of issuing Attachments 822
Article 2. In what manner, on what
Property executed, and Proceedings
thereon 828
Article 3. Attachment for purchase money 830
Article 4. Attachments against fraudu-
lentDebtors 831
Article 5. Proceedings on Garnishment 832
Article 6. Pleadings and Defenses 834
Article 7. Replevy and disposition of
Property Attached 836
Article 8. Claims, and Proceedings
therein 838
Article 9. Lien of Attachments, Gar-
nishment and Executions 839
Chapter 3. Of Petitions and Process 841
Article 1. General Provisions 841
Article 2. Particular Cases 845
Sec. 1. Against joint and joint and
several Contractors 845
Sec. 2. In Ejectment 847
Sec. 3. Against Corporations, etc 852
Sec. 4. Against Trustee 855
Sec. 5. Against Executors, Adminis-
trators and Guardians 856
Sec. 6. Particular forms 858
Chapter 4. Of the Venue 861
Chapter 5. Of Bail in Civil Cases 864
Article 1. Bail, in actions for personalty 864
Chapter 6. Of Making Parties 865
Chapter 7. Of Abatement, Retraxit, Dis-
missal and Renewal of Actions 868
TITLE III. — Of Defenses, and Proceedings Pending Action.
Chapter 1. Of Defenses, Pleas
Article 1. General Provisions
Article 2. Particular pleas
Sec. 1. To the Jurisdiction
Sec. 2. Of Set-off and Usury
Sec. 3. Of failure of Consideration.
Sec. 4. Of Non est Factum...
Sec. 5. Of other PJeas
Chapter 2. Of Amendments
Article 1. General Principles
870
870
874
874
875
876
877
878
879
879
Article 2. Particular Cases 884
Sec. 1. Of Amending Verdicts, Judg-
ments and Executions 884
Sec. 2. Of Amending Official Returns 885
Sec. 3. Of Amending Records 886
Sec. 4. Of other Amendments 886
Chapter 3. Of the Production of Papers.. 888
Chapter 4. Of Continuances 890
Chapter 5. Of Garnishments 895
TITLE IV.— Of the Verdict and Judgment.
Chapter 1. Of the Verdict and Judgment. 904
Ariicle 1. Of the Verdict and Reception 904
Article 2. Of Entering Judgments 907
Article 3. Effect and Lien of Judgment. 910
Article 4. Of Attacking Judgments 913
Article 5. Transfer of Judgment 916
Article 6. Confession of Judgment 917
Article 7. Of Dormant Judgments and
Revival thereof 918
TITLE Y.— Of Appeals.
Chapter 1. Of Appeals 921
Article 1. In what Cases Allowed 921
Article 2. When, by whom and how en-
tered 922
Article 3. Effect of Appeal 925
Article 4. How and when tried 926
CONTENTS.
XVII
TITLE VI.— Of Executions
PAGE.
Chapter 1. Of different kinds of Execu-
tions 928
Article 1. When and how Issued and
Returned 928
Article 2. Of &fi. fa., how Levied, and
Proceedings thereon 930
Article 3. Of Sales under Execution,
when and how made 933
PACE.
Article 4. Sales for Municipal Taxes 938
Article 5. Of the Satisfaction of Execu-
tions 939
Chapter 2. Or' the Stay of Execution 940
Chapter 3. <"*f the Illegality of Execu-
tions 941
Chapter 4. Of Forthcoming Bonds 944
TITLE VIL-ey Costs in Civil Cases.
Chapter 1. Costs in Civil Cases 945
Article 1. HowTaxi! 945
TITLE VIIL-
Chapterl. Of New Trial- 956
Article 1. By whom and lor what causes
allowed 956
TITLE IX.
Chapter 1. Of Claims to Property in Exe-
cution 965
Article 1. How and by Whom Inter-
posed 965
TITLE X.-
Chapter 1. General Principles 971
Chapter 2. Of the Rules Governing the
Admission of Testimony 977
Article 1. Of the General Rules 977
Article 2. Of Hearsay Evidence 980
Article 3. Of Admissions and Confes
sions 984
Article 4. Of Parol Evidence to Affect
Written 989
Chapter 3. Of Discovery from Parties 991
Chapter 4. Of Records and Other Written
Evidence 992
Article 2. How Collected 947
Chapter 2. Fees of Officers of Court 948
-Neiv Trials.
Article 2. When, where, and how tried 961
— Of Claims.
Article 2. When, where, and how tried 967
Chapter 2. Of Claims at Other Judicial
Sales 969
■Of Evidence.
Article 1. Of Records and Public Docu-
ments 992
Article 2. Of Private Writing 997
Chapter 5. Of Oral Testimony 999
Article 1. Witnesses, their Attendance
and Fees 999
Article 2. Of the Competency of Wit-
nesses 1002
Article 3. Of the Examination of Wit-
nesses 1006
Chapter 6. Of Interrogatories and Depo-
sitions 1010
Chapter 7. Of Perpetuating Testimony... 1017
TITLE XL— Of Juries.
Chapter 1. Of Grand Juries 1019
Article 1. Of the qualification of Grand
Jurors 1019
Article 2. How Selected, Drawn and
Summoned 1019
Article 3. Oath of the Grand Jury 1021
Article 4. Of the Power and Duty of a
Grand Jury 1022
Chapter 2. Of Special Juries 1023
Chapter 3. Of Petit Juries 1024
Article 1. Of the Qualifications of Petit
Jurors 1024
Article 2. How Selected, Drawn, Sum-
moned and Sworn 1024
Chapter 4. Special Provisions 1026
TITLE XII. — Of Proceedings Against Officers of Court.
Chapter 1. Of Proceedings Against Officers of Court
1032
TITLE XIII.— Of Proceedings to Foreclose Mortgages.
Chapter 1. Mortgage on Real Estate, how
Foreclosed 1037
Article 1. Of the Application, when and
how made 1037
Article 2. Defenses, Plea«, when and
how made 1038
Article 3. Of the Judgment, Disposition
of Properly, etc 1039
Article 4. Of the Proceeds of Sale, how
Appropriated 1040
Chapter 2. Proceedings to Foreclose a
Mortgage on Personalty 1041
Article 1. Of the Application, by whom
and how made 1042
Article 2. Of Defenses, when and how
made 1043
XVIII
CONTENTS.
TITLE XIV.— Of Proceedings to Establish Lost Papers.
PAGE.
Chapter 1. Lost Papers, when, where and
how established 1045
Article 1. How established in the Supe-
rior Courts 1045
PAGE.
Article 2. How established in a Jus-
tice's Court 1047
Article 3. Summary establishment of
Lost Papers 1048
TITLE XV.— Of Proceedings to Obtain Partition.
Chapter 1. Partition of Land, how obtain-
ed 1050
Article 1. When, where, and by whom
the application must be made 1050
Article 2. Notice to Parties, how given,
and upon whom served 1051
Article 3. Of the Issuing, Execution,
and Return of the Writ 1051
Article 4. Defenses, when and where
made 1051
Article 5. Of the Judgment 1052
Article 6. Of the Remedy of Parties ab- ■
sent from the State, under disability,
or not served with Notice 1053
Chapter 2. Partition of Personal Property,
how obtained 1053
TITLE XVI. — Of Proceedings on Application for Habeas Corpus.
Chapter 1. Proceedings on Application for Habeas Corpus 1034
TITLE XVII. — Of Possessory Warrants, and Proceedings thereon.
Chapter 1. Possessory Warrants, and Pro-
ceedings thereon 1058
Article 1. By whom and on what
Grounds the Warrant may issue 1058
Article 2. How Executed and Returned 1059
Article 3. Of the Trial. Judgment, and
Subsequent Proceedings 1060
TITLE XVIIL— Of Proceedings to Obtain Dower.
Chapter 1. Proceedings to Obtain Dower 1062
TITLE XIX— Of the Writ of Certiorari.
Chapter 1. Of the Writ of Certiorari 1064
Article 1. In what Cases the Writ of Cer-
tiorari lies 1064
Article 2. How Obtained, and Proceed-
ings thereon 1065
Article 3. Of the Answer, Hearing,
Judgment and Costs 1068
TITLE XX. — Proceedings against Trespassers on Lands, and Tenants Holding Over.
Chapter 1. Proceedings against Trespass-
ers on Lands, and Tenants Holding
Over 1071
Article 1. Proceedings against Intruders 1071
Article 2. Proceedings against Tenants. 1072
Chapter 2. Forcible Entry and Detainer.. 1075
TITLE XXL — Proceedings for the Abatement of Nuisances.
Chapter 1. Proceedings for the Abatement of Nuisances 1077
TITLE XXII. — Of Lnquests, and Proceedings thereon.
Chapter 1. Of Inquests, and Proceedings thereon 1079
TITLE XXIII. — Of Proceedings in Courts of Ordinary.
Chapter i. Procceedings in Courts of Or-
dinary 1089
Article 1. Sessions and Adjournments.. 1089
Article 2. Practice in Courts of Ordinary 1082
Article 3. Ordinary Selling for County
Purposes 1083
TITLE XXIV.— Of the Proceedings in Justices' Courts.
Chapter 1. Of the Proceedings in Jus-
tices' Courts 1084
Article 1. When and Where Held 1084
Article 2. Jurisdiction of Justices'
Courts 1085
Article 3. Commencement of Suits, Ser-
vice and Return of Summons 1086
Article 4. Pleas and Defenses 1087
Article 5. Evidence, Witnesses, Inter-
rogatories 1088
CONTENTS.
XlX
TITLE XXIV.— Of the Proceedings in Justices' Court— continued.
PAGE.
Article G. Trial and Judgment 1087
Arti^e 7. Appeals 1087
Article 8. Claims and Trials thereof 1080
Article 9. Final Judgment and Execu-
tion 1091
PAGE.
Article 10. Defaulting Constables, Wit-
nesses, and Contempts, how Punished 1092
Article 11. Levy and Sale under Ji. fa.... 1093
TITLE XXV .-—Equity Pleading and Practice.
hapter 1. Of the Bill and Subpcena, and
Service thereof 1095
hapter 2. Of Demurrers, Pleas and An-
swers 1100
hapter 3. Of Interlocutory Decrees, Re-
ceivers, Masters, etc 1104
Chapter 4. Of the Trial and its Incidents.. 1105
Chapter 5. Of Decrees and their Enforce-
ment 1107
Chapter G. Of other Proceedings in Chan-
cery 1109
TITLE XXVI.— Of Arbitration and Award.
hapter 1. Special Provisions 1110
Article 1. Of submission 1110
Article 2. Of the Organization and
Hearing 1111
Article 3. Of Continuances and Ad-
journments 1112
Article 4. Of the Evidence and Wit-
nesses 1112
Article 5. Of the Powers of Arbitrators 1113
Article G. Of the Rendition and Effect
of the Award 1113
Article 7. How attacked 1114
Articles. Of Costs and Compensation
of the Arbitrators 1115
Chapter 2. General Principles 1115
TITLE XXVII — Practice in Connection with the Supreme Court.
hapter 1. Of Bills of Exceptions and
Writ of Error 1117
Chapter 2. Of Proceeding in the Supreme
Court 1124
PART FOURTH.
PENAL LAWS.
TITLE I.— Penal Code.
)iv
)iv
)iv
)iv
)iv,
)iv,
)iv
)iv
)iv
)iv
)iv
)iv
1. Persons Capable of Committing
Crimes
2. Principals and Accessories
. 3. Crimes against the State and Peo-
ple.
4. Crimes Against the Person
5. Crimes Against the Habitation....
6. Crimes Relative to Property
, 7. Forging and Counterfeiting
. 8. Crimes Against Public Justice
, 9. Against Public Peace and Tran-
quility
, 10. Against Public Morality, Health,
Police and Decency
.11. Cheats and Swindlers
. 12. Fraudulent or Malicious Mis-
chief „
1133
1136
1137
1139
1149
1152
1163
1168
1179
1183
1199
1203
Div. 13. Indictment and Proceedings to
Execution 1210
Div. 14. Contempt of Courts and At-
tempts to Commit Crimes 1233
Div. 15. Proceedings in Preliminary
Courts 1235
Article 1. Proceeding Prior to Arrest... 1235
Article 2. Of Arrest and its Consequen-
ces 1237
Article 3. Of Courts of Inquiry, Com-
mitment and Bail 1238
Article 4. Of Warrants for Good Be-
havior, and to Keep the Peace 1241
Articles. Of Search Warrants 1242
Article 6. Of Proceedings in Cases of
Bastardy 1242
TITLE II.— Penitentiary Laivs.
'hapter 1. Penitentiary Laws 1244
TITLE III.— Convicts.
"hapter 1. Convicts 1248
xx APPENDIX.
APPENDIX.
PAGE.
Laws Having Reference to the City of Savannah 1254 to 128
Constitution of Georgia 1287 to 132'
Constitution of the United States 1331 to 134J
Rules of the Superior Courts 1344 to 135 \
Rules In Equity 1354 to 135
Rules of the Supreme Court 1356 to 136
Certain Orders and Rules of Practice * 136
Table of Cases Overruled, etc., in Georgia Reports 1362 to 136
List of Books Annotated and Abbreviations Used 1364 to 136
REVISED CODE OF GEORGIA.
PRELIMINARY PROVISIONS.
Section.
1. Obligation of laws.
2. Code— when and how to take effect.
3. "When "from and after passage."
4. Rules for construction of statutes.
5. Meaning of specific terms.
6. Future operation of laws.
7. Ignorance of law.
Section.
8. Lex Loci.
9. Comity of States.
10. Waiver of law.
11. Local laws.
12. Bonds of public officers.
13. Bonds taken by public officers.
14. Inspection of office books.
1. Laws of force in this State. [The laws of general operation in this ^ ( '\°l 2 \ 7S4 '
Const, of
1877, Art. 12,
Section 1.
State are :
1. As the supreme law: The Constitution of the United States, the^^t. n,
laws of the United States in pursuance thereof, and all treaties made const of
under the authority of the United States
Authority of decisions of Supreme Court of United States on Constitutional ques-
tions, paramount: 11 Ga., 500; 14/438; 37/135; Cooley's Const. Lim., 12. Of the Re-
vised Statutes: 97 U. S., £46; 14 Ct. of CI., 162. Treaties with Creek Indians, binding
as law : 3 Kelly, 179. See Cooley Const. Lim., 12.
2. As next in authority thereto : The Constitution of this State.
Ratified December 5th, 1877 ; Proclamation of Governor December 21st, 1877. Con-
stitution of 1868 was in force from July 25th, 1868 ; 39 Ga., 39. Rules for construction
of State Constitutions; Cooley Const. Lim., 38-83.
3. In subordination to the foregoing : All laws now of force in this
State, not inconsistent with the Constitution and the ordinances of
the Convention of 1877.] (a.)
Note : Laws of Force in this State :
(a.) The Code— Adopted by Constitutions of 1865 and 1868 : 38 Ga.,431; 42/196.
Appointment of Commissioners to fill vacancies caused by resignation of two
elected: 44 Ga,, 83. Authority of Codiflers — not to make but to codify laws : 34
Ga., 249; 37/412; 42/195. (See Acts 1858, p. 95;) see also 46Ga., 16; immaterial since
adoption by the Constitution : 38 Ga., 431. Common Law Principle adopted, details
incident to it presumed adopted: 37 Ga., 417. Definitions, generally exact, but not
construed as exhaustive : 42Ga.,196; 51/269. Omission of part of Statute, effect
of: 34 Ga., 251. Where the provision of the Code treats the entire subject matter,
what is omitted is repealed : 42 Ga., 332 ; 55/143. Where part omitted may be restored
without inconsistency, no repeal: 53 Ga,, 87. Presumed to show the substance of
all statutes in force at time of its adoption: 34 Ga., 249; it is a legislative interpreta-
tion thereof : 34 Ga., 250. Phraseology — change of, by Code, not held to be a change
of the law unless intention apparent : 37 Ga,, 412; 42/196; 51/269. Power of sale in
executor conferred by will made prior to Code, executor might sell at private sale
after Code : 62 Ga., 341. Decisions construing statutes prior to Code applicable to
similar provisions codified substantially: 62 Ga,, 728. Statute omitted, but not in-
consistent with any provision of the Code, still in force : 53 Ga,, 675.
Effect of Codification on Statute Law — On last point, see, also, 1 Mete, Ky. r
621; 1 Hill, 271; 33 N. H., 247; 7 Barb. 191; 21 Wend., 316; 34 N. Y., 284; 6 Tex.,
34 ; 45 Me., 72 ; 12 Minn., 388 ; 11 Ohio N.S.,1; Sedgwick on Stat, 229, 365. But when
the new statute treats the entire subject matter of a former statute, it repeals the
former: 37 N. H., 295; 30 Vt., 344; 19 Cal., 501; 21 Tex, 734; 42 Me., 53; so, also,
where the new Act is framed directly from the former: 1 Pick., 43; 12 Mass., 537; 5
Pick., 168; Sedgwick, 366. Courts cannot supply a casus omissus: 11 Iowa, 367. The
separation of sections of a former statute does not affect their construction : 19 Wise,
522; Sedgwick, 229. The adoption in Code of a statute previously construed is alegis-
REVISED CODE OF GEORGIA.
Preliminary provisions.
lative adoption of such construction: 26 Ala., 326; Sedg., 365. Re-enactment in Code
of prior law does not repeal exceptions which existed thereto : 15 Am. D., 156, 157, n.
Statutes passed during- the war — how far confirmed : 41 Ga., 231; 44/504.
(6.) Decisions of the Supreme Court of Georgia — Authority of, determined
by the principle "of the decision: 11 Ga., 500, 501. Act of 1858, p. 75, was prospec-
tive : 28 Ga., 597 ; it converted into statutes the decisions of the Supreme Court made
by a full bench: 30 Ga., 202. Such is still the law: 59 Ga., 54. Head-notes — law
only so far as supported by the decision: 26 Ga., 182, (but see §4270). Obiter dicta
do not settle the law nor create an equity in favor of a party : 25 Ga., 244 ; much of the
law originates in: 26 Ga., 298. Dudley's Reports,, Charlton's Reports, and Georgia
Decisions — authority of-: 13 Ga., 441.
(c. ) Rules of Court — See Code, §§204, 3246, and cases there cited. Rules adopted
by State Road, Code, §973.
(d.) Provincial Acts in force on May 14, 1776, adopted: 5 Ga., 195.
(e.) Common Law, of England. Adopting Act, see Act of 1784, (Cobb's Dig., p.
721,) adopting laws of force prior to May 14th, 1776. Crimes, none exist in Georgia
by common law, but only as defined by Code: 51 Ga., 288. English Common Law
Decisions higher authority than the ecclesiastical: 8 Ga., 341; prior to 14th May,
1776, not authority : 11 Ga., 500 ; 14/569 ; conclusive only when well settled : 15 Ga., 122.
Evidence— law of adopted: 1 Kelly, 108. Repeal of Act declaratory of common
law, without more, common law in force : 54 Ga., 231. Unsuited to this country,
decision not adopted: 5 Ga., 195; 14/569; 36/199; 49/28; 58/271. Words— meaning
of, ascertained by resort to the common law: 51 Ga., 288.
Common law, consists of what : 1 Cooley's Bl., 67 and note 3, p. 68 ; Cooley's Const.
Lim., 21. How far adopted: See Code of 1863, §1, par. 6: Sedg. on Stat., 6; Coolev's
Const. Lim., 23; 1 Kent Com., 461; Bishop's First Book, §57 ; Well's Jur., §198.
Relative value of common law authorities: 1 Kent's Com., 480, and Wallace on " The
Reporters;" Ram. Leg. Judg., (Am. ed.) 174. Common law presumed to be of force
in other States: 11 Am. D., 785; (except Louisiana: 13 La. An. R., 193;) Sedg. Stat.,
12, note (a.) On the maxim that Christianity is part of the common" law: Ram. Leg.
Judg., 11; Sedg. Stat,, 14, note (a.); Cooley Const. Lim., 472-477; 2 How., 127.
(/.) Statute Law of England, prior to May 14, 1776; compiled in Schley's Digest.
Statute adopted in toto or not at all: T. U. P. Charl., 166; (contra: 3 Binn, 595, 601;
11 S. and R., 394.) Unsuited to our condition, statutes not adopted : 5 Ga., 195 ; 36/199;
38/213; 58/271. See cases cited under §2695. How far adopted: Sedg. on Stat., 7;
Cooley's Const. Lim., 24; Collier vs. Grannis, Feb. T., 1880. Authority of Schley's
Digest: 1 Kelly, 604. List of statutes in force generally in United States : 6 C. L. J.,
449.— See 2 Pet., 1 ; 5/264, 358. ■
(g.) Equity — English system of : Code, §3100 and cases cited ; Well's Jur., §215.
(h.) Civil Law — See Code of 1863, §1, par. 6. Authority of: Domat's C. L., 8;
Broom'sComs., 21 ; 12 M. & W., 353 ; 7 Bing., 167 ; Ram. Legal Judg., (Am. ed.) 133.
(i.) Canon Law — See Code of 1863, §1, par. 6; 8 Ga., 341; Ram. Leg. Judg., 143;
11 Q. B., 649.
(j.) Legal Maxims — Broom's Corns., 20: Broom's Leg. Max., 1 ; Ram. Leg. Judg., 43.
(k.) Text Books of approved authority: 1 Cooley's Bl., 72; Ram. Leg. Judg., 150.
(I.) Practice: Broom's Leg. Max., 135; 21 How., 35; Wallace Rep., 255; Ram.
Leg. Judg., 40, 121 (Am. ed.); Austin's Jur., 757, 784, 928; 2 Pet., 58.
(ra.) Other sources of law: Ram. Leg. Judg., 11.
(n.) U. S. Court Reports — Their authority is (1) paramount on Constitutional
questions; (2) equal on questions of commercial law; (3) subservient on questions of
State laws: 1 Abb., U. S. Pr., §13. State laws, how followed: 1 Abb., U. S. Pr.,
§§49, 50; Sedg. on Stat., 367, note (a.); Cooley's Const. Lim., 13; 2 Woods, 385, 395;
Well's Res Adj., 583; Rorer's Inter-State Law, 33. Latest decisions, followed when:
2 Black, 599; 1 Wall, 175; 6 Pet, 291; 20 How., 1.— See, also, 12 0., 14; 10 0., 239; 19
Wal., 666; 1 Dan. Neg. Inst., 459; 1 Kent. Com., 342, n; 6 C. L. J., 345.
4. The custom of any business or trade shall be binding only when
g207o, 2048, it is of such universal practice as to justify the conclusion that it be-
came, by implication, a part of the contract.
Only where contract is dubious — parol evidence admitted to explain: 8 Ga., 540.
That owner is to pay only particular expenses does not supersede the legal principle:
14 Ga., 260. As to the negotiability of a note although under seal: 15 Ga., 529.
Of banks, not agents, diligence by custom of another bank: 16 Ga., 38. Rates of
shipment of cotton samples : 16 Ga., 558. As to extension of Acts: 18 Ga., 65-90.
Custom of common carriers as to delivery: 20Ga.,574; 21/526; 28/543; 32/405. As
to freights: 40 Ga., 419. Contract implied from usage: 21 Ga., 526. Proof of notice
must be shown: 30 Ga., 64. As to renting of other lands: 29 Ga., 82. When not
binding: 28 Ga., 543. As to payments: 31 Ga., 381. Practice makes it a part of the
contract: 41 Ga., 117. Express contract supersedes: 48 Ga., 601. Lender's custom or
practice, where borrower is not shown to have known it, inadmissible: 54 Ga., 545.
Reclamation for false packing of cotton must be made in reasonable time according
to the custom of business: 57 Ga., 362. Contract by custom among physicians: Mad-
den vs. Blaine: Pamph. Sept. T., 1880, pp. 37-8. Crop rent for one-third of the
corn and one-fourth of the cotton raised, enforced: 40 Ga., 511. Sending money by
mail, of merchants: 31 Ga., 378. Of storage at the time of storage only: 35 Ga., 108.
REVISED CODE OF GEORGIA.
Preliminary provisions.
Individual habits of dealing, not binding : 37 Ga., 384-392. Clerks of boats can bind only
where it is the universal custom: 41Ga.,122. Commission merchants : 42 G a., 535. Cus-
tom of trade, as to delivery of goods : 46 Ga,, 433. Bills of lading, as to exemptions in :
33 Ga., 159-164 (Suplt). As to cotton receipts and warehouses: 33 Ga., 96 (Suplt).
When not so universal as to be without exception: 64 Ga., 184-190.
Banks — usage of: Morse on B., 433; 6 Am. I)., 52. Custom — what necessary to
■constitute: 1 Cooley's Bl., 76; 20 Am. D., 433 n; 1 Am. R., 66; 8 How., S3; 15/539;
4/317. When admissible to explain deed : 8 Am. 1)., 293; 19/201. Evidence of : 2
Whart. Ev., 958; Broom's Leg. Max., 883; Broom's Com., 509: 13 Wall, 363; 7 Cr.,
506; 23 How., 420. Factor selling on credit, effect of, with respect to: 5 Am. I)., 22;
D/7H0. Mingling goods of different consignors: 16 Am. D., 367. Charge of commis-
sions to both parties : 20 Am. R., 66. Futures — margins: 25 Am. R., 392. Fixtures :
2 Pet, 137. Insurance: 20 Am. D., 424; 14/289; 32 Am. R., 78. Indorsement by
cashier of Bank: 13 Am. D., 287. Allowance of interest in accordance with: 6 Am.
D., 192, n. When becomes part of a contract: 2 Am. D., 374, n ; 6/411; 1 Add.
Contr., #244; 23 How., 420; 1 Wall, 456; 3 C. L. J., 808. Partnership agreement,
when affected by: 20 Am. R., 286. Of plasterers to charge for openings: 2 Am. D.,
374, n; 10 Am., R., 407. Existence of , a question for the jury: 20 Am. D., 424;
but not legality : 7 C. L. J., 458. To vary effect of sale by sample : 7 Am. D., 130, n.
As to Sheriff's sales : 13 Am. D., 672. Transfer and sale of stocks : 11 Am. D., 575;
1 Am. R., 115; 23/R., 80. Sale of flour: 18 Am. D., 726. As to tenant's right to
wav-going crop: 6 Am. D., 411. — See generally Lawson on Usage; 2 Gr. Ev., #248; 1
Smith's L. C, 670-747; 2 C. L. J., 678; 25 Am. D., 372, n; 26/682; 18/204; Browne on Usage.
§2. (2.) (2.) Code — when and how to take effect. This Code shall take Act of 1858,
effect on the first day of January, 1863. All offenses committed prior i86i,'p^ C 2i;
to that date shall be tried and punished under existing laws ; and all Ac * of 1869 »
rights, or obligations, or duties acquired or imposed by existing laws, p * '
shall remain valid and binding, notwithstanding the repeal or modifi-
cation of such laws.
Section cited, not retroactive: 34 Ga., 387. Liability of husband for wife's debts
before the Code: 38 Ga., 258. Interest prior to the Code: 45 Ga., 520. The Act of
1869, repealing the third section of the Act of 1856, does not affect the Code provis-
ions : 52 Ga., 410-414.
. §3. (3.) (4. ) Statutes — when to take effect. Public laws which in them-
selves prescribe specifically that they are to take effect " from and after
their passage," shall not be obligatory on the inhabitants until pub-
lished,* and three days shall be allowed, from the date of publication,
for every hundred miles distance from the capital, before a knowl-
edge of the law shall be presumed against the inhabitants.
Where no time fixed, it takes effect from its passage : 8 Ga., 380. Retrospective laws,
registry of marriage settlements: 16 Ga., 102. Where there is a penalty, takes
effect after being duly published: 34 Ga., 270. Law, prior to the Code, took effect
from the date of its passage : 36 Ga., 538.
18 Am. D., 120; 1 Kent Com., 454; Sedg. Stat. 66; Cooley Const. Lim., 166.
§4. (4.) (5. ) Construction of statutes. The following rules shall govern
the construction of all statutory enactments in this State :
A statute must be construed with reference to the whole system of which it forms
a part: 14 Ga., 674.
1. The ordinary signification shall be applied to all words, except
words of art, or connected with a particular trade or subject-matter,
when they shall have the signification attached to them by experts
in such trade, or with reference to such subject-matter.
Ordinary signification : 4 Ga., 486; 49/201. The common sense of it: 46 Ga., 281.
Any pistol: 61 Ga., 418.
2. The present or past tense shall include the future.
3. The masculine gender shall include the feminine and neuter. .
7 Wall, 219.
4. The singular or plural number shall each include the other, unless
expressly excluded.
Stated, orphans includes orphan: 23 Ga., 383.
2 Am. D., 441; 5/530.
* See Acts of 1876, p. 3& J> P\.
REVISED CODE OF GEORGIA.
Preliminary provisions.
5. A joint authority given to any number of persons, or officers, may
I §3032, 4241. be executed by a majority of them, unless it is otherwise declared.
Majority : 1 Ga,, 271. Three commissioners out of five competent to act : 9 Ga., 367.
9 Am. D., 422, n; 17/529; Green's Brice Ultra Vires, 588.
6. A substantial compliance with any requisition of the Code, or
§3282. laws amendatory thereof, especially on the part of public officers, shall
be deemed and held sufficient, and no proceeding shall be declared void
for want of such compliance, unless expressly so provided by the enact-
ment.
Four commissioners assigning dower are sufficient: 64 Ga., 764. Illegality, judg-
ment merely irregular, in omitting to sign it: 62 Ga., 103-106. When Judge's certifi-
cate to a bill of exceptions is a substantial compliance with the law : 58 Ga., 467. As
to signature of a bond in a garnishment case : 55 Ga., 617.
7. When a bond is required by law, an undertaking in writing, with-
§2915. out seal, is sufficient; and in all bonds where the names of the obligors
do not appear in the bond, but are subscribed thereto, they are bound
thereby.
An undertaking in writing without a seal is sufficient: 48 Ga., 631-641. Where
bond subscribed: 9 Ga., 501. Instrument with a scrawl is a bond: 29 Ga., 427.
8. When a number of days is prescribed for the exercise of any privi-
33614. lege, or the discharge of any duty, only the first or last day shall be
counted; and if the last day shall fall on the Sabbath/^nother day
shall be allowed in the computation.
Paper dates from its delivery : 38 Ga. 459. In the five days for Sheriffs to serve writs,
the return day excluded from the computation: 33 Ga., 146. Sunday counted when
in the thirty days the Judge is to certify a bill of exceptions: 14 Ga., 122. Sunday
not counted as one of the four days within which to appeal : 12 Ga., 93. Sunday not
counted as one of the five days for the Sheriff to serve a writ: 23 Ga., 49. From and
after, excludes the last day, certiorari: 28 Ga., 41. Ticket to be used within two days
from the day sold : Ga. S. R. Road vs. Bigelow, September Term, 1881. No notice of
fractions of a day: 38 Ga., 459. Judgment of a Justice of the Peace nineteen days
from the date of the summons, is void : 56 Ga., 282.
Computation of time: 9 Cr.. 104; 18 How., 394; 2 Wall, 177; 19/661; 1 Am., D. 99,
551; 7/250; 14/521; 21/492; 19 Am. R., 470; Ang. Lim., 41. Fractions of day: l r
Woods, 552; 21 Am. D., 492; 9 Pet, 33. Sunday: Broom's Max, 22; 12 Am. D.
290, n; 18/423. Leap year: 32 Am. R., 92, n.
9. In all interpretations, the Courts shall look diligently for the
intention of the General Assembly, keeping in view, at all times, the
old law, the evil and the remedy. Grammatical errors shall not vitiate,
and a transposition of words and clauses may be resorted to when the
sentence or clause is without meaning as it stands.
Rules to interpret: 2 Ga,, 85. Intent from the Act, and other Acts : 3 Ga., 146. In-
tent controls where there are several Acts: 33 Ga., 344. Intention governs, and
implied repeals not favored: 15 Ga., 361. Intention to be arrived at by the surround-
ings at the time of the passage of the Act: 29 Ga., 621. One Legislature cannot bind
another by contract, where Act of Congress revocable: 33 Ga., 39 (Suplt). Laws of
other States recognized by comity : 49 Ga,, 110. Intention governs : 49 Ga., 54. Where
two affirmative statutes not repugnant, the one not repealed by the other : 49 Ga., 152-
159. Charters expire in thirty years where silent as to their continuance : 49 Ga., 151.
General Note. — Construction liberal, but not too much latitude: 3 Ga., 152.
Must regard substance, and not cling too closely to the letter of the law: 13 Ga., 55.
Construction, legislative — revenue statutes, and those in derogation of common
rights, strictly construed : 8 Ga,, 23 ; 4/208. Of a doubtful law, where it interferes with
no vested rights, has retroactive efficacy: 9 Ga,, 213. Cannot enact that the law was
such, in some past time : 39 Ga., 48. Nor retrospectively : 40 Ga., 341. Construction,
cotemporary — history of legislation in reference to particular matter looked to : 8
Ga., 23; 4/208. Affirmance of what the law has been in the past: 39 Ga,, 48. Differ-
ent provisions of the Code and common law considered with the statute: 40 Ga,, 341.
Regard to construction placed by sages of the law who lived at the time, or soon after:
13 Ga., 441. Corporations, statutes in favor of, strictly construed; 7 Ga., 221;
8/23; 9/212. Charters of banks, as contracts: 19 Ga., 325. Acts not warranted by:
40 Ga., 103. Need not recite in the title its powers : 62 Ga., 485. Constitutionality pre-
sumed. — not declared unconstitutional except in clear cases : 16 Ga., 102 ; 9/253. Duty
of Judiciary as to unconstitutional legislation : 13 Ga, 83. Courts reluctant to declare
REVISED CODE OF GEORGIA.
Preliminary provisions.
Acts unconstitutional: 34 Ga., 309. Except when absolutely necessary to do other-
wise : 35 Ga., 124. Where the Legislature not rightfully in session, how it affects legis-
lation : 44 Ga., 77. When presumption in favor res adj udicata : 44 Ga., G49. Confirm-
atory Statutes in regard to hank assignments : 30 Ga., 770. Derogatory of common
right — must be strictly construed : 1 Ga,, 51 ; 18/318. As to eminent domain : 3 Ga.,
31. Making party plaintiff witness against himself on a usurious contract, and admit-
ting defendant's oath in support of his plea: 4 Ga., 474-492. As to grants, strictly
construed: 9 Ga., 475. Extended no farther than the words clearly import: 30 Ga.,
527 ; 1 Ga., 533 ; 8Ga., 23. Distribution — Acts changing the law of descent without con-
sent of the individual, are wrong : 8 Ga., 211. Exceptions and provisoes — when not
exceptions: 2 Ga., 92-103. How stated in an indictment: 22 Ga,, 545 ; 13/435. As re-
gards the statute of limitations : 15 Ga,, 1. Different rule in civil from criminal cases:
17 Ga., 625. Proviso: 21 Ga., 366. Indictment need not negative the proviso in the
law : 26 Ga,, 593. Proviso void because repugnant to the body of the Act : 33 Ga., 302.
Body of the Act not different from the title: 22 Ga., 203. Expressio unius, etc. —
Meaning of: 1 Ga., 403, 404. Constitutional provision, effect on the legislative branch:
39 Ga., 265. Fraud., suppression of— liberally construed: 9 Ga.,253. Where dehors
the grant, voidable only on suit: 10 Ga., 192. General terms — Discussion in refer-
ence to the Penal Code: 12 Ga,, 36-40. "Other writing" will not include a record :
21 Ga., 16. Act of Congress, the general expression, "or other property," what it
covers: 34 Ga., 199. Interpretation — An equitable construction, within the mis-
chief, if not within the words: 17 Ga., 456. The phrase, "in operation," defined:
9 Ga., 286. In pari materia — several Acts on the same subject and of doubtful mean-
ing, general intent controls: 33 Ga,, 344. Different statutes made at different times
construed together: 1 Ga., 32; 2/85, 43. Acts of 1810 and 1820 construed as to the
terms, to the Court of Ordinary, with reference to whole system of which it is a part :
10 Ga., 68; 14/674. Intention gathered from all the other Acts in pari materia: 3 Ga.,
146. Legitimating" Statutes — Where the only effect was to change the party's name :
7 Ga., 512. Assent of reputed father to legitimating act necessary: 10 Ga., 342.
To enable illegitimates to inherit: 25 Ga., 636. Liberty, personal, in favor of —
Acts for the relief of honest debtors : 20 Ga., 474. Common Law and the Constitution
of the State, together with the statute: 21 Ga., 139-143. Insolvent laws liberally con-
strued in favor of: 27 Ga,, 224. Omission of -word in — word grant omitted in one
part, explained in another part of the statute : 2 Ga., 143. Penal Statutes — although
construed strictly, yet not so as to defeat the intention of the Legislature: 3 Ga.,
18-23: 34 Ga., 455. Lotteries under Act of 1833, only civil remedy for: 29 Ga., 616.
So strict that ordinary signification of the law would reach the offense: 33 Ga., 229.
In favor of life: 38 Ga., 571. Private Statutes — import verity, but attackable for
fraud: 8 Ga., 211. Proceedings ex parte — great strictness required: 31 Ga;, 710.
Remedial Statutes — Are to receive an equitable construction or interpretation : 2
Ga., 85. Against fraud, liberally construed; qui hceret in litera, hozret in cortice: 2 Ga.,
254, 5. Enlarging common law rights of all as to assigning and transferring judgments
and executions: 5 Ga., 364-368. Where there is a right of action created in favor of
individuals: 12 Ga., 104. Even if retrospective, not void if do not impair contracts
or vested rights, and do affect the remedy : 12 Ga., 437. May be retrospective and yet
constitutional: 23 Ga., 183. Rights vested — not divested without compensation : 23
Ga,, 407. Construed as executed contracts, and when not, an Act of Congress : 33 Ga.,
39 (Suplt). Repealed — impairing obligation of contracts: 39 Ga,, 307. Rights under
temporary statutes continue, although the law expires : 30 Ga., 581. Repeals generally :
1 Ga., 32; 14/391. Affirmative statute repealing a former affirmative statute by im-
plication: 49 Ga., 173. Reserving right of repeal in a statute, can then repeal by
implication: 14 Ga., 328; 12/404. By implication, not favored; 15 Ga,, 361. Can
repeal where do not impair the obligation of contracts: 17 Ga., 56. As to stock killed
by railroad, repealing the old law: 21 Ga., 104-7. Of prior Act as to the punishment,
not a repeal of the Act itself: 23 Ga., 9, 10. No repeal by implication where it oper-
ates in future : 24 Ga,, 356. Two affirmative statutes not repugnant, do not repeal:
26 Ga., 120-122. Only a repeal so far as repugnant: 27 Ga,, 407. Demurrer testing the
question as to the law being repealed : 28 Ga., 85. Title looked to — not where the
words of the enacting clause are clear and positive: 1 Ga,, 157; 31/605. Of amending
Act, looked to: 25 Ga,, 610. Trade — restraining of, strictly construed: 8 Ga., 23.
Taxes — strictly construed : 8 Ga., 23. Prior to the Code : 34 Ga., 370. Intention in an
Act of Congress: 35 Ga., 315. Working forfeiture — strictly construed: 25 Ga., 344.
Statute of another State adopted with construction: 22 W T is., 147; 41 Mo., 453;
19 111., 151; 2 Pet., 1; 9 Barb., 161; 10 Mich.. 169; 7 Ind., 91; 3 Gray., 450; 28 Ala.,
326; 21 Vt., 256; 27 Me., 9. Clauses transposed: 6 Wall, 458. Terms are presumed
to be used in their Common Law meaning: 3 Am. D., 265; 1 Bk., 459. Curative
legislation; 24 Am. R., 421. Omission of formal enacting clause: 14 Am. R., 427;
21/738. Expository statute: 20 Wall, 323; 8 Am. R., 153; n, 166. Impeaching
statutes: 3 Am. R., 161: 8/602; '21/721; 20/69; 13/640, and n, 648 ; 17/28; 22/70. Against
lotteries, extend to what schemes: 8 Am. D., 682. Married women — statutes en-
larging rights of: W^ells Sep. Prop., gl. Proviso: 15 Pet,, 423; 3 Wall, 495; 19/227.
Reference to public history: 23 Wall, 307, 1 0., 72. Repeal by implication not
favored: 18 Am. D., 542; 22 How., 299; 11 Wall, 356, 652. State— when bound by:
•See note following $22. Tax laws : Cooley Tax, 198. See generally, Sedg. on Stat. ;
Potters Dwarris on Stat. ; Lieber's Hermeneutics ; 1 Cooley's Bl., 87.
6 REVISED CODE OF GEORGIA.
Preliminary provisions
§5. (5.) (6.) Meaning of Certain Words. The following meaning shall
2§2245, 2237. be given to each of the following words in all statutes, unless a differ-
ent meaning is apparent from the context :
"Property" includes real and personal property.
This section and clause cited : 48 Ga., 137.
"Personal Property" includes everything except interests exceeding
a lease-hold in lands, tenements and hereditaments. Stocks in incor-
porated companies, though the object of the company is necessarily
connected with the land, shall be held as personal property.
gi65i. "Person" includes a corporation and persons of color.
"Persons" includes corporations, as banks : 60 Ga., 134. As to torts, there is the-
same rule: 58 Ga., 219. As to corporations, that applies to persons: 18 Ga., 412.
Railroads on same footing as persons: 24 Ga., 356. Taxes apply to corporations the
same as to persons : 44 Ga., 397. Fraud in corporations treated just as with individuals :
54 Ga., 636.
See 18 Am. D.. 291.
"Writing" includes printing and all numerals.
"Oath" includes affirmation.
"Signature" or "Subscription" includes the mark of an illiterate or
infirm person.
"Lunatic" "Insane," or "Non Compos Mentis" each includes all per-
sons of unsound minds.
"Negro" includes mulattoes.
2245,1606. u Person of Color" means all such as have an admixture of negro
blood.
"Justice" when applied to magistrates, means Justice of the Peace.
"Preceding" and "Aforesaid" mean generally next before, and "Fol-
lowing" next after, unless the context requires a different signification.
Aforesaid : 35 Ga., 181.
As to the meaning and signification of these words "preceding" and " aforesaid : n
35 Ga., 180; 1 Am. D., 99.
Act of 1838, ' ' '
c. p. 536. "Month" means a calendar month.
"Year" means a calendar year.
Leap-year, 32 Am. II., 86, n 92.
Act of 1838 u Seal" shall include impressions on the paper itself, as well as im-
c. p. 274, ' pressions on wax or wafers. With the exception of official seals, a
88 ' ' " scrawl, or any other mark intended as a seal, shall be held as such.
Seal of a corporation presumed to have been properly placed there: 58 Ga., 547.
Official seal of clerk should be affixed to his certificate : 13 Ga., 253. Scroll with word
"seal" written in it opposite name on bond, sufficient: 12 Ga., 459. Same rule applies
to the seal of a corporation as to that of an individual : 25 Ga., 316.
"Highway," or "Road," includes bridges upon the same.
Other Words— Month: 59 Ga., 393. In operation: 9 Ga., 286. All: 15 Ga., 518.
Either: 20 Ga., 120. When: 20 Ga., 584. Provided: 22 Ga., 206. Shall: 34 Ga., 18-
122. Corporation: 35 Ga., 318. Officers: See Section 69. Banks: See Section 1484.
May, permissive and discretionary with the Court: 34 Ga., 18; 9 How., 248, 50, 168.
When may construed to mean must or shall: 38 Ga., 545; 7/89; 33/419; 15 Am. D.,
464, 467, n. .
For meaning of particular words, see Abbott's Law Diet.; Sedg. Stat., 371.
§6. (6.) (7.) Future operation of laws. Laws prescribe only for the
future; they cannot impair the obligation of contracts, nor generally
have a retrospective operation. Laws looking only to the remedy or
mode of trial, may apply to contracts, rights and offenses entered into
or accrued or committed prior to their passage ; but in every case a
reasonable time subsequent to the passage of the statute should be
allowed for the citizen to enforce his contract, or protect his right.
Obligation of contracts not violated in reference to a grant : 2 Ga., 143-7 ; where
remedial, not unconstitutional :. 5 Ga., 239. License obtained from the inferior Court
cannot be affected subsequently by any action of a city : 5 Ga., 447. Law not affecting;
REVISED CODE OF GEORGIA.
Preliminary provisions.
vested rights can be retroactive: 9 Ga., 213. Act of the Legislature, when a contract,
not affected subsequently: 10 Ga., 193. Remedial retrospective law, where does
not impair contracts, not illegal: 12 Ga., 437; 13/306. Changing county site did not
impair vested rights: 17 Ga., 56. When no contract existed made by the State: 17
Ga., 179-182. An Act of limitations not unconstitutional : 18Ga.,171. Exemptions to a
fire company revoked, held not unconstitutional : 20 Ga., 448. As to State's power
over incorporated academy, endowed by the State: 22 Ga., 506. Refers to contracts at
the time of the passage of the law : 23 Ga., 51. Where the franchises being of a differ-
ent character, the one did not infringe on the other : 25 Ga., 445. Where only changes
a rule of evidence, not objectionable : 35 Ga., 26. State may vary the remedy if so
chooses: 38 Ga., 356. Denying remedy impairs the obligation of the contract: 44 Ga.,
295. Retrospective operations where only adds additional remedy : 1 Ga., 78.
Where only prospective: 1 Ga., 173. When not retrospective and not impairing the
obligation of contracts: 4 Ga., 208. Retrospective statutes forbidden generally: 8
Ga., 23-24. When not retroactive : 12 Ga., 353. When registry law allows a reasonable
time to record, not objectionable : 13 Ga., 1. Ex post facto law defined: 16 Ga., 102.
Where operates only on the remedy : 16 Ga., 151. A statute of limitations not objec-
tionable where a reasonable time allowed: 20 Ga., 408. When only prospective law:
28 Ga., 597. Confirmatory, retroactive law as to taxes legal : 30 Ga., 845-852. Ex post
jacto and retroactive law is void: 35 Ga., 298. Where no legal vested rights affected,
not objectionable : 36 Ga., 51. Where a law in regard to small-pox was held not
retroactive : 36 Ga., 422. Legal tender law of Congress is right although retrospective :
37 Ga., 503. Law making that clear heretofore doubtful, not objectionable: 39 Ga.,
48. Inheritance allowed-by a retrospective law : 40 Ga., 341. As affecting the Western
and Atlantic Railroad held a correct law: 40 Ga., 418. As to taxes on railroads: 40
Ga., 652. Not so unless where language so demands : 43 Ga., 388-390. When not affected
by: 43Ga.,480. Remedymay be left generally to the Legislature's discretion : 7 Ga.,163.
And the mode and manner also are under legislative control : 9 Ga., 253. When not
intended to be retrospective as to judgments rendered before the passage of the Act : 15
Ga., 497. Claims before the passage of the Act collectible where only remedy,changed : 25
Ga., 243. So remedy not rendered nugatory by changing: 28 Ga., 345. When does not
impair the remedy : 44 Ga., 420.
See note to §5188.
§7. (7.) (8.) Ignorance of law. Laws, after promulgation, are obliga-§2i.
tory upon all inhabitants of this State, and ignorance of the law ex-
cuses no one.
Plea of ignorance of the law not upheld : 58 Ga., 126. Difference between ignorance
and mistake : 7 Ga., 70. Does not excuse a Sheriff: 32 Ga., 362. Ignorance of law as
affecting the jury : 30 Ga., 385.
10 Am., D., 323, n; 15 Am. R., 171; Whart. Neg., §410; Broom's Leg. Max., 249.
§8. (8.) (9.) Lex loci. The validity, form and effect of all writings or
contracts are determined by the laws of the place where executed.
When such writing or contract is intended to have effect in this State,
it must be executed in conformity to the laws of this State, excepting
wills of personalty of persons domiciled in another State or country.
As to indorsement, remedy is governed by the lex fori, and construction by the lex
loci : 2 Ga., 158. Where the indorsement is here it is governed by the law here : 4 Ga.,
1 ; 27 Ga., 243. Wills of personalty governed by party's domicile, and realty by the
lex loci : 3 Ga., 432. Who are heirs : -29 Ga., 311. Lex loci governs as to the nature,
construction and obligation of contracts : 2 Ga., 159. Priorities depend on the law of
the place where the property is : 7 Ga., 359. Lex loci governs as to the interpretation,
and the lex fori as to the remedy : 18 Ga., 725. Lex loci only availswhere it does not affect
! law of this State, or have immoral tendency: 34 Ga., 407. South Carolina mortgage
only a security here : 36 Ga., 152. Remedy governed by the lex fori : 2 Ga., 159 ; 37 Ga.,
428. Where it was contemplated that the contract should go into effect, controls its
construction: 12Ga.,583. Case of an assignment : 35 Ga., 177. Place of performance
governs as to interest : 21 Ga., 135. Divorce governed by the lex fori : 31 Ga.,' 223. But
marriage and legitimacy, etc., by the lex loci: 34 Ga., 407. Lex loci applied to United
States Courts in Georgia : 35 Ga., 320. Agreements as to arbitration construed accord-
ing to law where made: 37 Ga., 456. Presumed that lex loci is same as our own as
to Sunday contracts : 41 Ga., 449. Common Law presumed in force, if not shown what
law of another State is: 43 Ga., 461. Note in South Carolina payable there, governed
by the law there : 50 Ga., 434, 425. Will of lands governed by the lex loci: 52 Ga., 476.
Procedure, where suit is brought, but rights determined according to law where damage
done : 49 Ga., 106. Law of the place forms part of the contract : 49 Ga., 152. Contracts
governed by the law of State where to be performed: 62 Ga., 241; 31/210. Where
the law placed in evidence, the lex loci governs : 64 Ga., 184 ; 38/132.
Ante-nuptial Contract: 17 Am. R., 16; 24 Am. R., 242. Assignments: Rorer,
?V; 6 Am. D., 72, 466; 11/289; 17/372; 21 Am. R., 35; 22/312. Statutory Bonds:
Rorer, 54. Carrier, goods lost by, in transit from one State to another, lex loci where
loss occurs governs : 6 Am. R., 434; 12/1 ; 20/589; but see as to passengers : 6 Am. R.,
8 REVISED CODE OF GEORGIA.
Preliminary provisions.
43. Conditional Contract, law in force when it was made governs it: 20 Am. D.,
299. Homicide caused bv injury in another State : 26 Am. K,., 742. Interest depends
on lex loci: 8 Am. D., 442; 9/30; 6/192, n; 12/342; 26/239; Rorer, 48, 80. Laborer's
lien: Rorer, 70. Statute of Limitations: 5 Am. D., 733; 13/320; 13 Pet, 312; Rorer,
171. Majority, law of, what domicile governs: 17 Am. D., 179, n. Marriage:
See note to §1710. Married women, contracts of: 12 Am. D., 479, n; 12 Am. R., 319.
Marital rights, by what law governed on removal of sponses to another country :
12 Am. D., 475; 14/201; 16/212, n. Mortgage lien: Rorer, 68. Notes, etc.: Rorer,
60; 2 Pars. B. & N., 317; Redf. & Big. L. C.Notes: 709. Special partnership: 25 Am.
R., 128. Distribution of personalty: 13 Am. D., 350; 6 Am. R., 307, n; Rorer, 200.
Sale of personalty governed by the law of the country where it is : 12 Am. D. 470; 19/-
177, n ; Rorer, 197. Performance of contract : Rorer, 45, 10, 406. Mode of Proof, lex loci
governs: 4 Am. R., 29. Realty, governed by lex rei sitse: Rorer, 208; 3 Wh., 212;
10 Wh., 192 ; 6 Am. R., 268; 60/627 ; but deed to land to secure debt by lex loci : 6 Am.
R., 268. Contract for services in another State governed by the laws thereof: 10
Am. D., 179. Set-off allowed under foreign law will be allowed elsewhere : 5 Am.
D., 157, n. Stoppage in transitu: Rorer, 73. Torts, actions for: 1 C. L. J., 485;
2/305, 352; 3/377. Warehouse receipts: Rorer, 72. Wills of personalty: 1 Schoul
Pers. Pr., 380; 1 Jarm. Wills, 3.— See generally: 1 Smith's L. C, 786. Don vs. Lip-
man: 1 Ross L. C, 233 n, 248; 2 Woods, 244; Hutch. Car., §140 ; 1 Schoul Pers. Pr.,
349; 1 Add. Contr., §238: also works on "Conflict of Laws" and "Private International
Law ;" and Rorer'-s Inter-State Law.
§9. (9.) (10.) Comity of States. The laws of other States and foreign
§§1662,_ig75, nations shall have no force and effect of themselves within this State,
o84, /o . f ur { ; ] ier than is provided by the Constitution of the United States,
and is recognized by the comity of States. The Courts shall enforce
this comity, until restrained by the General Assembly, so long as its
enforcement is not contrary to the policy or prejudicial to the interests
of this State.
By comity the citizen of a foreign state cannot be made a party to a suit here so
as to estop him by such judgment: 5 Ga., 505. Laws of other States — how far
respected: 5 Ga., 511. Comity as affecting a home judgment on property: 7 Ga., 359.
As regards slaves escaping: 9 Ga., 555. Fugitives from justice: 13 Ga., 97. Lex
loci not enforced w r hen immoral:' 34 Ga., 407. As to injuries done in Alabama: 43
463. Judgment lien on property removed, and then returned to this State: 17 Ga.,
491. Administrations and successions: 18 Ga., 561. Foreign administrator, comity is
reciprocity : 34 Ga., 518. Not required by comity to enforce what is not law in another
State : 36 Ga., 390. Suing foreign executors in this State : 56 Ga., 326-329.
No State will enforce contracts prohibited by its laws: 16 Am. D., 212; 20/286; 25
Am. R., 634; Rorer on Inter-State Law, 4, 10, 167; 13 Pet., 519; 4 How., 467; 8 Wall,
168; 10/566; 1 Smithes L. C, 785, 136, 613. t
§10. (10.) (11.) Waiver of law. Laws made for the preservation of
public order or good morals cannot be done away with or abrogated
by any agreement ; but a person may waive or renounce what the law
has established in his favor, when he does not thereby injure others
or affect the public interest.
Section 12 of Code of 1863 repealed.
Section construed: 50 Ga,, 471. Waiver by not requiring a seal on a receipt: 57
Ga,, 469-473. Cannot waive a law so as to make an experimental case : 59 Ga., 11.
May waive time as being of the essence of the contract: 60 Ga,, 459. Homestead
waiver : 59 Ga, , 558. Homestead waiver good, in a mortgage by the husband as against the
wife.: 61 Ga., 195. Intoxication does not prevent : 62 Ga,, 449. Of jury trial: 62 Ga.,
398. Of fraud: 47 Ga,, 26. Of amendments: 47 Ga., 596; 60/421; 61/483. Constitu-
tional right may be waived: 25 Ga., 37. As in case where eminent domain exercised:
30 Ga., i54. May waive any right as to service: 39 Ga. , 595. Irregularity may be
w T aived, out not complete defect: 13 Ga., 217, 218. Cannot waive the pleadings: 56
Ga,, 225. Waivers by prisoner: 39 Ga., 719; 43/220; 28/576,581; 41/583.
Broom's Leg. Max., 671-677. Waiver by insurer of defense arising from misdescrip-
, tion of property: 16 Am. D., 466 n; by legislator of his privilege — what is: 16 Am.
D., 785, n. Of want of notice of corporation meeting: 18 Am. D., 103, n. When does
not arise from accepting part of fruits of contract: 19 Am. D., 280, n. Of right to
appeal: 13 Am. D., 546, n.
§11. (11.) (13.) Local laws. If there is a law in force at the time
of the adoption of this Code, having entirely a local application, such
local law is not repealed by this Code, unless so expressly declared.
Act of 1853- §12. (12.) (14.) Bonds of public officers. All bonds taken from public
i'& ;> ?('ii officers shall be kept in the places specified by law, and copies thereof
168. ' shall be furnished to any person desiring them. Suits thereon may be
REVISED CODE OF GEORGIA,
Preliminary provisions.
brought b}' any person aggrieved by the official misconduct of the offi-
cer, in his own name, in any Court having jurisdiction thereof, with-
out an order for that purpose.
Where Sheriff neglects to serve process and make return thereof: 62 G a., 108. For-
merly order necessary to sue on Sheriff's bond: 15 Ga., 159. Where order to sue
on Sheriff's bond was correct: 15 Ga., 433.
§13. (13.) (15.) Bonds taken by officers. All bonds taken by public
officers, under the laws of this State, shall be returned to the offices
specified by law; and any person interested therein may bring suit
thereon, in his own name, in any Court having jurisdiction thereof.
§14. (14.) (16.) Inspection of public books. All books kept by any Act of i83i,
public officer under the laws of this State, shall be subject to the in- c - p- 1% -
spection of all the citizens of this State, within office hours, every day
except Sundays and holidays.
But private citizen cannot make abstract of record — when: 51 Ga., 393.
PAKT I.
THE POLITICAL AND PUBLIC ORGANIZATION
OF THE STATE.
TITLE I.
DIVISIONS AND JURISDICTIONS.
CHAPTER I.
OF THE BOUNDARY, SOVEREIGNTY AND JURISDICTION OF THE STATE.
Article 1. — The Boundary of the State.
Article 2. — The Sovereignty and Jurisdiction of the State.
Article 3. — Coast Survey.
ARTICLE I.
C p. 150.
THE BOUNDARY OF THE STATE.
Section. i Sectton. #
15. Boundary of the State. 18. Between Georgia and Alabama.
16. Line between Georgia and South Carolina. 1.9. Between Georgia and Florida.
17. Between Georgia, North Carolina and Ten-
nessee. I
§15. (15.) (17.) Boundaries of the State. The boundaries of Georgia, as
Act of 1788; deduced from the Constitution of Georgia, the Convention of Beaufort,
the Articles of Cession and Agreement entered into on the 24th April,
1802, the Resolution of the General Assembly of December 8th, 1826,
and the adjudications and compromises affecting Alabama and Florida,
are as follows :
From the sea, or the mouth of the river Savannah, along the stream
thereof to the fork or confluence made by the rivers Keowee and
Tugalo, and thence along said river Tugalo until the fork or confluence
made by said Tugalo and the river Chattooga, and up and along the
same to the point where it touches the northern boundary line of South
Carolina and the southern boundary line of North Carolina, which is
at a point on the thirty-fifth parallel of north latitude, reserving all the
islands in said rivers Savannah, Tugalo and Chattooga, to Georgia;
thence on said line of said thirty-fifth parallel, from said point of inter-
section, and on and along said line west, to a point where it merges
into and becomes the northern boundary line of Alabama — it being
the point fixed by the survey of the State of Georgia, and known as
Nickajack; thence in a direct line to the great bend of the Chatta-
hoochee river, called Miller's Bend — it being the line run and marked
by said survey; and thence along and down the western bank of said
PART I.— TITLE I.— CHAPTER I. 11
Article 2 '—•The sovereignty and jurisdiction of the State
Chattahoochee, along the line or limit of high-water mark to its junc-
tion with Flint river; thence along a certain line of survey, made by
Gustavus J. Orr, a surveyor on the part of Georgia, and W. Whitner,
a surveyor on the part of Florida, beginning at a fore-and-aft tree,
ab :t four chains below the present junction; thence along this line
east, to a point designated thirty-seven links north of Ellicott's Mound
on the St. Mary's river; thence along the middle of said river to the
Atlantic Oeean, and from thence to the mouth or inlet of said Savannah
river, to the place of beginning; including all the lands, waters,
islands, and jurisdictional rights within said limits, and also all the
islands within twenty marine leagues of the sea coast.
$16. (16.) (18.) Line between Georgia and South Carolina. The boundary
between Georgia and South Carolina shall be the line described as
binning from the mouth of the river Savannah, up said river and the
rivers Tugalo and Chattooga, to the point where the last named river
inters 3cts with the thirty-fifth parallel of north latitude, conforming,
as much as possible, to the line agreed on by the commissioners of said
States at Beaufort on the 28th April, 1787. /? s~^ $
§17. (17.) f 19. ) Line between Georgia, North Carolina and Tennessee. The ^2**C^«^»*- «**
boundary between Georgia and North Carolina and Georgia and Ten- ^/- ( /^ ) ~<^L.
nessee shall be the line described as the thirty-fifth parallel of north /**£ -^, SZZp,
latitude, from the point of its intersection by the river Chattooga, west */3 /2-~ J2
to the place called Nickajack. «g«*»**, '•5*, '
§18. (18.) (20.) Line between Georgia and Alabama. The boundary ^^^**- ./f '7. /#*/
line between Georgia and Alabama shall be the line described from f '
Nickajack to "Miller's Bend" on the Chattahoochee, and down said
river to its junction with the Flint.
§19. (19.) (21.) Line between Georgia and Florida. The boundary lifr Act of 1859,
between Georgia and Florida shall be the line described from the June p - 23 -
tion of the Flint and Chattahoochee rivers to the point thirty-seven
links north of Ellicott's Mound, on the St. Mary's river; thence down
said river to the Atlantic Ocean.
General Note on Article I. — Boundaries of Georgia: 1 Pet., 94; 2/216; 6 Cr., 87;
13 How., 381; 23/506. Generally as to State boundaries: 11 Pet., 185; 12/657; 14/210;
17 Plow., 4-78. Law as to boundary rivers : Rorer's Inter-State Law, 336 et seq.
ARTICLE II.
THE SOVEREIGNTY AND JURISDICTION OF THE STATE.
Section.
20. Jurisdiction as to places.
21. Jurisdiction as to persons.
Section.
22. Government must defend suits — when.
22. (a.) Trials where State is party.
(20.) (22.) Sovereignty and jurisdiction. The sovereignty and
jurisdiction of this State extends to all places within the limits of her
boundaries, except so far as she has voluntarily ceded the same to the
United States, or adjacent States, over particular localities.
See note to $4672. A State cannot abdicate its jurisdiction over places in its limits
unlets the title thereto has been vested in II. S. : 19 Am. R., 765. See, on the general
subject, Well's Jur., $116.
§21. (21.) (23.) As to persons. The jurisdiction of this State and its
laws extends to all persons while within its limits, whether as citizens,
denizens or temporary sojourners.
Only parties here made and served are concluded by the judgments: 5Ga.,497;
8/83. As to non-residents, must have possession of person or property: 19 Ga., 277.
A non-resi lent passing through the State can be sued here : 18 Ga., 690. The person must
be here or have property here, to confer jurisdiction: 25 Ga., 473; 30/440. Appearing
and answerirg to a suit waives jurisdiction: 31 Ga., 140. When foreign administrator
not suable here: 34 Ga., 511-519; 56/328. Tribunal first obtaining jurisdiction re-
12 PART L— TITLE L— CHAPTER I.
Article 2.— The sovereignty and jurisdiction of the State.
tains it, as between State and United States Courts ; 40 Ga., 362. Sovereignty united
with domain establishes exclusive jurisdiction of State as to crimes : 13 Ga., 97.
See $3416, note. Court having jurisdiction of parties may decree specific perform-
ance on contract respecting land in another State: Well's Jur., §116. Jurisdiction of
Equity Courts in personam: 2 White and T. L. C, 319; Well's Jur. $90. Railroad
extending through several States : 2 Woods. 447. Actions for torts, committed beyond
the jurisdiction will lie against resident defendants. 1 Sm. L. C, 765, 790; Wells. Jun,
$115. Action for trespass to land, or affecting the title, cannot be brought out of the
jurisdiction where the land lies: 1 Sm. L. C, 790; aliter where suit involves only the
proceeds of the land: Wells Jur., $116. Decoying partv within jurisdiction to be sued:
16 Am. D., 723; 32 Am. R., 693. Jurisdiction of State Courts limited to State lines: 2
Am. D., 45; in action against officer of U. S.: 12 Am. D., 513.
§22. (22.) (24.) Governor must defend suits, when. When any suit is in-
stituted against the State, or against any person, in the result of which
the State has an interest, under pretense of any claim inconsistent
with its sovereignty, jurisdiction or rights, the Governor shall, in his
discretion, provide for the defense of such suit, unless otherwise
specially provided for.
State not sued without her consent : did it apply to the Western and Atlantic Rail-
road? 23 Ga., 436-8. Same rule as to Georgia Military Institute: 31 Ga., 277. Western
and Atlantic Railroad cannot be garnisheed: 37 Ga., 240. State cannot be sued with-
out tbe Governor's consent: 25 Ga., 374. When the State is not properly made a party
to a suit: 43 Ga., 605. The State must consent to be made a party to a suit: 45 Ga., 365.
No action against: 12 Am. D., 517, n; 18/194, n; 24/598; 27/345; Broom's Leg. Max.,
58; Rorer Inter-State Law, 21; Wells Jur., $91. Costs against, not recoverable; 16
Am. D., 407, n; 32 Am. R., 710. No right of set-off against: 12 Am. D., 153, n. State
cannot be garnished: 18 Am. D., 194 and n.
§22. (a.) Trial of Cases when State is party. The Judges of the Supe-
|74, Acts of rior Court and of the Supreme Court in this State, where cases are
' ,p " "pending in said Courts, in which the State is a "party plaintiff" in
civil cases, it shall be, and is hereby, declared the duty of said Judges
to give preference over any and all cases so pending to such cases, and
to use all the power vested in them by law to bring such cases to a
speedy trial; and shall, whenever required so to do by counsel for the
State, take up said cases for trial, and proceed to try the same, unless
the defendant can show some good cause for continuance, when the case
shall be continued to a future time in the same' term, or to the next
term, in the discretion of the Court: Provided, nothing in this section
contained shall affect the right of the State to continuance on a proper
showing.
General Note on Article I. — "State" defined: 7 Wal., 700. Deeds by: 2 Wal.,
177. State may become trustee : 3 Woods, 351. It will not be assumed that the State
has stripped itself of any portion of its sovereignty by an act of the Legislature, unless
the language is too clear to admit of doubt: 2 Black 510, 513. Not subject to imputa-
tions of fraud: 14 Am. D., 140. A State is a "person" within the meaning of a
statute, which punishes the fraudulent alteration of a public record, with intent that
any person may be defrauded: 24 Tex., 61. General words in a statute do not include
nor bind the sovereign power; it is bound only by express terms or necessarv implica-
tion : Crabbe, 307; 9 Gill., 379; 7 Ged., 48; 18 Am. D., 194; 15/380, n. Ordinarily, a
statute which, in general terms, speaks of plaintiffs and defendants, applies to persons
only, and not to States, counties and municipal corporations: 4Gilm., 20. The rule
that the Government is not bound by a law unless expressly named, does not apply to
acts of legislation which lay down general rules of procedure in civil actions : 9 Wall,
655; 10 Exch., 84. People have succeeded to all the rights of the king: 15 Am. D., 379.
Not bound by estoppels: 14 Am. D., 140; 15/512; 2 C. L. J., 542. Not estopped to deny
constitutionality of statute upon decision of its Supreme Court: 4 C. L. J., 553. May
> arbitrate disputes between itself and citizens: 4 C. L. J., 502.
PART I.— TITLE I.— CHAPTER I.
13
Article 3. — Coast survey.
ARTICLE III.
COAST SURVEY
Section.
23. Persons employed in coast survey.
24. Damages to land-owners — awarded.
25. Award — objections thereto, issue, etc.
Section,
26. How costs may be avoided.
27. Amount of the costs.
§23. (23.) (25.) Coast surveyor*. Any person employed under the Act Act of 1847,
of the Congress of the United States, providing for a survey of the c ' p "
coasts, may enter upon lands and clear or cut timber within this State
upon the same, for any purpose legitimately connected with, and requi-
site to effect, the said object: Provided, no unnecessary injury be done
thereby, and all damages to the owner of the land be promptly paid.
§24. (24.) (26.) Damage to land-owners. If the parties representing Act of 1847,
the Government of the United States, and the owner or possessor of the C- p ' 155,
land so entered upon, cannot agree upon the amount to be paid for said
damages, either party may complain in a summary manner to the
nearest Justice of the Peace of the county in which the land lies, who
shall associate with him two disinterested freeholders of the county —
one to be named by each party interested — who shall, upon hearing the
parties, and with or without view of the premises, as they may deter-
mine, proceed to assess and award the damages, if any: Provided, the
party complaining shall give the opposite party ten days' notice, in
writing, of the time and place when and where said complaint is to
be heard, and the name of the freeholder by him selected.
§25. (25.) (27.) Award and objections thereto. The said assessors, with- Act of 1847,
out unreasonable delay, shall file their award in the office of the Ordi- ' p ' J
nary of the county, which shall be conclusive upon both parties, unless
objections are filed to the same within ten days after the filing of the
award. If objections are filed, the other party shall have written notice ;
whereupon an issue shall be made and tried at the first term there-
after of said Court, under the same rules as other civil cases.
§26. (26.) (28. ) Damages, tender of. The person so entering upon lands Act of 1847,
may tender such amount as he chooses for the damage done, and if the * p * "
damages finally assessed shall not exceed the sum tendered, the party
complaining shall pay all costs.
§27. (27.) (29.) Costs. The costs before an Ordinary shall be the A <* of & i847,
same as are allowed by law in civil cases in said Courts. ' '
14
PART I.— TITLE I.— CHAPTER II.
Article 1 — Counties.
CHAPTER II.
THE POLITICAL AND JUDICIAL DIVISIONS OF THE STATE.
Article 1. — Counties.
Article 2. — Congressional Districts.
Article 3. — Judicial District and Circuits.
ARTICLE I.
COUNTIES.
Section.
28. Names and limits of counties.
29. Cases belonging to new counties.
30. Unexecuted processes transferred.
31. Officers cut off into new counties.
32. Officers of adjacent counties may act.
33. Extra tax in new counties.
(a) Act of
1861, p. 101.
<b) Act of
1870, p. 18.
(c) Act of
1870, p. 13.
(d) Act of
1870, p. 20.
(e) Act of
1870, p. 16.
<f) Act of
1875, p. 109.
Section.
34. Executors, etc., cut off into new counties.
35. When counties are divided by a stream.
36. Offenses committed on water courses.
37. Offenses committed on boundary line.
Counties entitled to two Representatives.
Representation from new county— when.
38.
39.
(28.) (30.) Names of Counties. The State is divided into the fol-
lowing counties, whose boundaries and limits shall be ascertained by
the several Acts laying off the same, and those amendatory thereof :
Appling,
Baker,
Baldwin,
Banks,
[Bartow,] (a.)
Berrien,
Bibb
Brooks,
Bryan,
Bulloch,
Burke, . .
Butts,
Calhoun,
Camden,
Campbell,
Carroll,
Catoosa,
Charlton,
Chatham,
Chattahoochee,
Chattooga,
Cherokee,
Clarke,
Clay,
Clayton,
Clinch,
Cobb,
Coffee,
§29. (29.) (31.) Cases to be transferred. When a new county is organ-
ized, the jurisdiction of all suits pending in the county or counties from
which the new county has been laid off, of which, under the Constitu-
tion and laws of this State, the new county should have cognizance, is
transferred immediately to the corresponding Court in such new county,
together with all the Court papers pertaining thereto, to which shall
be attached the certificate of the clerk of the Court from whence they
came, that they are the proper papers of the suit, and the amount of
costs accrued therein, the amount then due, and by what persons paid;
for which certificate the clerk must receive, from the person asking the
transfer, the costs then due, unless he makes oath that, owing to his
poverty, he is not able to pay the costs.
Ejectment suit — records moved to tlie new county: 18 Ga., 719. DeKalb county
claimed costs from fines, etc., in Fulton county, before the county was divided: 26 G;t..
328. Transfer of a case about a will from Henry to Spalding county: 27 Ga., (>33.
Lost Court papers established before transfer of case to the new county: 30 Ga., 703.
Land in suit, cut off in a new county: 43 Ga., 535.
Columbia,
Gwinnett,
Miller,
' Sumter,
Colquitt,
Habersham,
Milton,
Ted hot,
Coweta,
Hall,
Mitchell,
Taliaferro,
Crawford,
Hancock,
Monroe,
Tattnall,
Dade,
Haralson,
Montgomery,
Taylor,
Dawson,
Harris,
Morgan,
Terrell,
Decatur,
Hart,
Murray,
Telfair,
DeKalb,
Heard,
Muscogee,
Thomas,
[Dodge,] (b.)
•Henry,
Newton,
Towns,
Dooly,
Houston,
[Oconee,] (e.)
Troup,
Dougherty,
Irwin,
Oglethorpe,
Twiggs,
[Douglass,] (c.)
Jackson,
Paulding,
Union,
Early,
Jasper,
Jefferson,
Pickens,
Upson,
Echols,
Pierce,
Walker,
Effingham,
Johnson,
Pike,
Walton,
Elbert,
Jones,
Polk,
Ware,
Emanuel,
Laurens,
Pulaski,
Warren,
Fannin,
Lee,
Putnam,
Washingtoi
Fayette,
Liberty,
Quitman,
Wayne,
Floyd,
Lincoln,
Rabun,
Webster,
Forsyth,
. Lowndes,
Randolph,
White,
Franklin,
Lumpkin,
Richmond,
[Rockdale,] (f.)
Wilcox,
Fulton,
Macon.
Wilkes,
Gilmer,
Madison,
Schley,
Wilkinson,
Glascock,
Marion,
Scriven,
Whitfield,
Glynn,
[McDuffie,] (d.)
Spalding,
Worth,
Green,
Mcintosh,
Stewart,
Gordon, "
Meriwether,
Making
137 counties.
PART I.— TITLE I.— CHAPTER II. 15
Article 1. — Counties.
§30. (30.) (32. ) Process unexecuted, All process (mesne or final) or paper
requiring some official act to be done by any officer of the counties from
which the new county is taken, and which cannot be done by reason
of the creation of said new county, must, without delay, be transmitted
by the same to the corresponding officer in the new county, and if pro-
ceedings have been had thereon, and not finally disposed of, the officer
of the new county must, proceed as though the paper had been origi-
nally in his hands; but publication of the times and places of sale, and
proceedings of like character, shall be in the manner prescribed by law.
Sale of land previously levied on: 15 Am. D., 41.
§31. (31.) (33.) Officers cut off retain their office. All ministerial officers
in commission, included within the limits'of the new county, hold their
commissions and exercise the duties of their office until their commis-
sions expire and their successors are elected and qualified, unless there
is more than one for the same office; and in new counties organized
entirely from one county, all the officers of the old county are author-
ized to exercise their respective duties in the new county until the
proper officers are elected and qualified; and Justices of the Peace com-
prised in the new county, whose districts are not materially disturbed
by the lines of the new county, retain their offices and their districts
until their commissions expire.
§32. (32.) (34.) Process, how issued and served in new county. When
any new county, as organized, is without a person authorized to act as
Clerk of Sheriff, or both, a corresponding officer in any adjoining
county may exercise the duties of such officer, in issuing, serving and
returning process, until said new county is supplied.
[Sec. (33.) Repealed. See Acts of 1869, p. 139.]
§33. (34.) (36.) Extra tax for new county. The Ordinary of the new
county may l£vy, for the first year after his qualification, an extra
tax for county purposes, of such per cent, upon the State tax as may
be necessary, according to his discretion and the terms of the Act of
organization.
[Sec. (35.) Repealed. See Constitution of 1868, Art. V. Sec. 14.]
§34. (36.) (38.) Executors cut off. Any executors, administrators or §§i820, 26ii.
guardians, making returns to the Ordinary of the old county, and
residing within the limits of the new county when organized, may
make their returns to, and perform all their official acts with, the Ordi-
nary thereof; and when any such act is done, the jurisdiction is changed
to the new county, and such trustee shall file with the Ordinary of the
new county, to be recorded by him, a certified copy of all his acts from
the Ordinary of the old county. • * «
§35. (37.) (39.) Counties divided by water. Whenever a stream of water § 4770 -
is the boundary of a county, the jurisdiction of the county shall extend
to the centre of the main channel of such stream ; and if an offense is
committed on such stream, and the evidence on the trial does not defi-
nitely disclose in which county it was committed, the Courts of either
county may maintain jurisdiction for the trial and punishment of the
offender.
§36. (38.) (40.) Jurisdiction of offense committed on ivater courses. When-
ever an offense is committed on the waters of any river which forms a
boundary between this and any other State, the whole of which river
belongs to Georgia, the county which is situate on the side of the river
opposite the point where the offense is committed, has jurisdiction of
the same ; and if the evidence on the trial does not definitely disclose
on which side of the line, between two counties, at the place where it
touches the river, the offense was committed, the Courts of either
county may maintain jurisdiction.
16 PART I.— TITLE I.— CHAPTER II.
Article 2. — Congressional districts.
§37. (39.) (41.) Offenses committed on the line betiveen Georgia and other
States. This State claims jurisdiction of an offense committed on any
of her boundary lines with other States for the county bordering on
that part of the line where the offense was committed, and if. doubtful
as to which of two counties, (as set forth in the preceding section,) for
either county, and will proceed to arrest, indict, try, and execute, until
such other State shall make a demand for the accused as a fugitive
from justice ; in which event the progress of the case shall be sus-
pended by order of the Governor until the question of jurisdiction is
settled.
§38. (42.) Representation from counties. The House of Representatives
Con.of 1868, shall consist of one hundred and seventy-five members apportioned as
Act'of S 20tii follows : To the six largest counties, to-wit : Bibb, Burke, Chatham,
Feb. LS73; Floyd, Fulton, and Richmond, three Representatives each; to the
Sept, i88i. twenty-six next largest, to-wit : Bartow, Carroll, Cobb, Coweta, Decatur,
/^>—/« A /^r>-* DeKalb, Greene, Gwinnett, Hall, Hancock, Harris, Houston, Jackson,
I' Jefferson, Meriwether, Monroe, Muscogee, Oglethorpe, Pike, Putnam,
Sumter, Thomas, Troup, Walton, Washington, and Wilkes, two Rep-
resentatives each, and to the remaining one hundred and five counties
one Representative each.
§39. (41.) (4$.) Representation from new county, when. There shall be
no representation in either branch of the General Assembly from any
new county until after the next regular election for members of the
same, but the Senators and Representatives already elected from the
counties forming the new county shall serve out the term for which
they were elected, without regard to their residence in or out of the old
counties; and all vacancies by death, resignation, or removal, shall
be filled by the county where the member resided at the time of his
election.
A new county created out of other counties is not liable for injuries caused by
defective bridge in former territory of such other counties: 25 Am. R., 730. As to
liability of counties, see notes on Title VI., post.
ARTICLE II.
CONGRESSIONAL DISTRICTS.
Sfxtion. I Section.
40. Congressional districts. I 41. New Counties — where attached.
§40. (42.) (44.) Congressional Districts. Conforming to the last appor-
(a) Act of tionment of members of the House of Representatives of the United
• >*'■'/ States Congress, there shall be in this State [ ai -i ae] (a) Congressional Dis-
'^0-f* /. /^*?» tricts, constituted as follows, until changed by Act of the General As-
sembly, viz. :
The First District shall include the counties of Appling, Bryan, Bul-
lock, Burke, Camden, Charlton, Chatham, Clinch, Echols, Effingham,
Emanuel, Glynn, Liberty, Mcintosh, Pierce, Scriven, Tattnall, Ware,
and Wayne.
The Second District shall include the counties of Baker, Berrien, Brooks,
Calhoun, Clay, Colquitt, Decatur, Dougherty, Early, Lowndes, Miller,
Mitchell, Quitman, Randolph, Terrell, Thomas, and Worth.
The Third District shall include the counties of Coffee, Dodge, Dooly,.
Irwin, Lee, Macon, Montgomerv, Pulaski, Schley, Stewart, Sumter,
Taylor, Telfair, Webster, and Wilcox.
The Fourth District shall include the counties of Campbell, Carroll,,
Chattahoochee, Coweta, Douglas, Harris, Heard, Marion, Meriwether,
Muscogee, Talbot, and Troup.
PART I.— TITLE I.— CHAPTER III.
Article 3. — Judicial districts and circuits.
The Fifth District shall include the counties of Crawford, Clayton, De-
Kalb, Fayette, Fulton, Henry, Houston, Milton, Monroe, Pike, Spald-
ing and Upson.
The Sixth District shall include the counties of Baldwin, Bibb, Butts,
jasper, Jones, Laurens, Newton, Putnam, Rockdale, Twiggs, Walton
and Wilkinson.
The Seventh District shall include the counties of Bartow, Catoosa,
Chattooga, Cherokee, Cobb, Dade, Floyd, Gordon, Haralson, Murray,
Paulding, Polk, Walker and Whitfield.
The Eighth District shall include the counties of Columbia, Elbert,
Glascock, Greene, Hancock, Hart, Jefferson, Johnson, Lincoln, McDuffie,
Oglethorpe, Richmond, Taliaferro, Warren, Washington and Wilkes.
The Ninth District shall include the counties of Banks, Clarke, Daw-
son, Fannin, Forsyth, Franklin, Gilmer, Gwinnett, Hall, Habersham,
Jackson, Lumpkin, Madison, Morgan, Oconee, Pickens, Rabun, Towns,
White and Union.
§41. (43.) (45.) New counties, where attached, If in the organization of
a new county there is an omission to specify to which Congressional
District it belongs, it shall be attached to that from which most of its
representative population has been taken, according to the Federal
basis, which shall be determined by the Governor, if necessary, at any
time before legislation, to remedy the omission.
ARTICLE III.
JUDICIAL DISTRICTS AND CIRCUITS.
Section. I Section.
42. Judicial Districts and Circuits. 1 43. To what Circuit a new county belongs.
§42. (44.) (46.) One Supreme Judicial District and twenty-one Judicial Cir-
cuits. The entire State constitutes one Supreme Judicial District, and
is 'divided into twenty-one Judicial Circuits in reference to the jurisdic-
tion and session's of the Superior Court, which Judicial Circuits are as
follows, to- wit :
[Albany Circuit, composed of the counties of Baker, Calhoun, Decatur, <&) Act of
Dougherty, Mitchell and Worth.] (a.) lb7 °' p> 3T -
[Atlanta Circuit, composed of the counties of DeKalb, Clavton and (b) Acts of
Fulton.] (b.) " 1869 > p - 2U -
[Augusta Circuit, composed of the counties of Burke, Columbia, Mc-(c) Acts of
Duffie and Richmond.] (c.) 187 °- * 38 -
Blue Ridge Circuit, composed of the counties of Cherokee, Cobb, Daw-
son, Fannin, Forsyth, Gilmer, Milton and Pickens.
Brunswick Circuit, composed of the counties of Appling, Camden,
Charlton, Clinch, Coffee, Echols, Glynn, Pierce, Ware and Wayne.
Chattahoochee Circuit, composed of the counties of Chattahoochee, Har-
ris, Marion, Muscogee, Talbot and Taylor.
Cherokee Circuit, composed of the counties of Bartow, Catoosa, Dade,
Gordon, Murray and Whitfield.
Eastern Circuit, composed of the counties of Bryan, Bulloch, Chat-
ham, Effingham, Liberty, Mcintosh and Scriven.
Flint Circuit, composed of the counties of "Butts, Henry, Monroe, New-
ton, Pike, Rockdale, Spalding and Upson.
Macon Circuit, composed of the counties of Bibb, Crawford, Houston
and Twiggs.
Middle Circuit, composed of the counties of Emanuel, Glascock, Jef-
ferson, Johnson, Tattnall and Washington.
2
18 PART L— TITLE I.— CHAPTER III.
Article 3 — Judicial districts and circuits.
(d) Act of [Northeastern Circuit, composed, of the counties of Habersham, Hall]
issi Aug ' Lumpkin, Rabun, Towns, Union and White.] (d.)
Northern Circuit, composed of the counties of Elbert, Hancock, Hart,
Lincoln, Madison, Oglethorpe, Taliaferro, Warren and Wilkes.
Ocmulgee Circuit, composed of the counties of Baldwin, Greene, Jas-
per, Jones, Morgan, Putnam and Wilkinson.
(e) Acts of [Oconee Circuit, composed of the counties of Dodge, Dooly, Irwin,
1871 "" 2 'P- 32 - Laurens, Montgomery, Pulaski, Telfair and Wilcox.] (e.)
Pataula Circuit, composed of the counties of Clay, Early, Miller, Quit-
man, Randolph, Stewart and Terrell.
ifi Acts of [Rome Circuit, composed of the counties of Chattooga, Floyd, Paul-
1869, P . 20. ding, Polk, Haralson and Walker.] (f.)
Southern Circuit, composed of the counties of Berrien, Brooks, Col-
quitt, Lowndes and Thomas.
Southwestern Circuit, composed of the counties of Lee, Macon, Schley,
Sumter and Webster.
\ t f [Goweta Circuit, composed of the counties of Campbell, Carroll, Cow-
1874, p. 43. eta, Douglass, Fayette, Heard, Meriwether and Troup.] (g.)
Western Circuit, composed of the counties of Banks, Clarke, Franklin,
Gwinnett, Jackson and Walton.
§43. (45.) (48.) New county, to what Circuit attached. If any new
county is organized with an omission to attach it to any Judicial Cir-
cuit, it belongs to the Circuit from which most of its territory is taken.
PART I.— TITLE II.— CHAPTER III. 19
Who are citizens — As to exy>atriation.
TITLE II.
OF CITIZENSHIP.
Chapter 1 . — Who are Citizens.
Chapter 2. — As to Expatriation.
CHAPTER I.
WHO ARE CITIZENS.
Section. J Section.
44. Who are citizens of Georgia. ] 45. Who arc not white persons.
$44. (46.) (49.) Who are citizens. [All citizens of the United States, (a) Const. of
resident in this State, are hereby declared citizens of this State.] (a.) sec\corist
Insufficient certificate of naturalization: 18 Ga., 239. Prove naturalization by a»y i, gee.' L, *
competent evidence : 22 Ga., 546. par. 2f>.'
Morse on Citizenship and Giaque on Naturalization. 20 Am. R., 254. Who are citi-
zens : 2 Otto., 542; 6 Pet,, 761; 21 Wal., 162; 24 Am. D., 345 ; Well's Jur., $444-452.
§45. (47.) (50.) Persons of color. Persons having one-eighth or more of gi666
negro or African blood in their veins, are not white persons in the
meaning of this Code.
Free persons of color formerly not citizens: 4Ga.,68; 20/480; 14/198.
[Sec. (48.) Repealed. See Constitution of 1868, Art, L, Clause 2.]
CHAPTER II.
AS TO EXPATRIATION.
Section. 1 Section.
46. How citizenship may be renounced. 4& How citizenship is acquired.
47. When citizenship ceases. j
§46. (49.) (53.) Citizenship may be renounced. Except in time of war,
every citizen shall have the right of expatriation, with a view to become
a citizen of another State or country not a part of the United States,
with which this State is at peace. The declaration or avowal of such
intention accompanied by actual removal, is held a renunciation of
all his rights and duties as a citizen.
3 Dal., 133; 7 Wh., 283; 2 Cr., 280; Broom's Leg. Max., 77.
§47. (50.) (54.) When citizenship ceo,ses. Until citizenship is acquired
elsewhere, after compliance with the terms of section 46, the person
continues a citizen of Georgia and of the United States.
§48. (51.) (55.) Citizenship again acquired. If a person, having been
thus expatriated, acquires citizenship under some foreign power, he and
his descendants who go with him for the purpose of residence can be
citizens of this State again only after a residence of three years herein,
and taking the oath of allegiance, as in case of other foreigners.
20
PART I.— TITLE III.— CHAPTER I.
The Governor: his powers and duties not specified in the Constitution.
TITLE HI.
OF THE EXECUTIVE DEPARTMENT.
Chapter 1. — The Governor: His Powers and Duties.
Chapter 2. — The Executive Office and Secretaries.
Chapter 3. — State House Officers — Secretary of State, etc.
Chapter 4. — Offices connected with the Executive Department.
Chapter 5. — Regulations as to all Executive Offices and Officers.
CHAPTER I.
THE GOVERNOR
HIS POWERS AND DUTIES NOT SPECIFIED IN THE
CONSTITUTION.
.Section.
49. Governor's inauguration.
50. His oath to he taken.
51. May call out the militia.
52. He may call out militia and volunteers.
53. Shall cause fugitives to he arrested.
54. Deliver fugitives from other States.
55. Delivery suspended in certain cases.
56. Fugitives not demanded.
57. Warrants for the arrest of fugitives.
58. He may offer rewards.
59. May appoint commissioners of deeds.
60. He must commission officers.
61. Shall issue grants to lands.
62. Shall protect the public property.
63. May sue for dues to the State.
Section.
64. May buy property — when.
65. Titles — how made.
66. May rent or sell — when.
67. May remove liens. •
68. Shall report purchase.
69. Shall appoint officers and fill vacancies.
70. Mode of filling certain vacancies.
71. What Governor appoints Judges.
72. His secretaries and other officers.
73. Officers of public institutions.
He may employ special agents.
May suspend collection of taxes.
Payments from the treasury.
Certain records to be kept.
Seal of the Executive department.
74.
75.
76.
77.
78.
§49. (52.) (66.) Governor's inauguration. The Governor elect shall be-
gin the discharge of his duties from the time of his inauguration. The
ceremony of inauguration shall take place during the first week of the
session of the General Assembly next after the election, and on such
day of that week as the General Assembly* by joint resolution,
appoints. On failure of appointment, it takes place at 12 o'clock,
meridian, on Saturday of that week, unless prevented by providential
causes.
§50. (53.) (57.) His oath, when taken. The oath prescribed by the tenth
paragraph of the first section of the fifth Article of the Constitution
of this State, and the oath to support the Constitution^ of the United
States, shall be taken by the Governor elect in the presence of the
General Assembly.
§51. (54.) (58.) May call out military. It is the duty of the Governor
to see that the laws are executed. For this purpose he has power, as
Commander-in-Chief, to call out the military whenever, in his discre-
tion, the due enforcement of the process of the Courts is so resisted
and set at defiance as to require such interposition.
§52. (55.) (59.) In case of insurrection or invasion. In case of invasion or
insurrection, the Governor has power to call out all volunteer military
companies, or the militia, or both, for the defense of the State, until
such time as the General Assembly meet; and when so called into
action, he has power to make all necessary provision for their trans-
portation, accommodation, equipment and support.
,§53. (56.) (60.) Shall cause the arrest of fugitives. Whenever there is
found within this State a fugitive from justice from a foreign State,
and by the treaty stipulations of the United States such person is to
PART L— TITLE III.— CHAPTER I. 21
The Governor: his powers and duties not specified in the Constitution.
be surrendered up to the authorities of a foreign State upon requisi-
tion from the proper officers, the Governor, by his warrant, shall cause
him to be arrested and delivered over to such officer.
§54. (57.) (61.) Shall cause fugitives to be arrested. It is the duty of the §§37, 3696.
Governor, under his warrant, to cause to be arrested and delivered up
to the proper officers of any other State of the United States, any fugi-
tive from justice from said State, upon demand made of him by the
Executive of such other State in the manner prescribed by the laws
and Constitution of the United States. And if such fugitive shall
have assumed another name in this State, and the Governor is satisfied,
by evidence on oath filed in his office, of the identity of such person
with the fugitive demanded, he shall state the fact in his warrant for
the arrest.
The Governor is controlled by the record: 13 Ga., 98. Duty of agent of this State
receiving fugitive from another State: 42 Ga., 358.
Duty to surrender fugitives, absolute: Rorer's Inter-State Law, 220; offense must
have been committed within the jurisdiction asking for: lb., 221 ; charge must be posi-
tive : lb., 221; cannot be used to enforce civil obligations: lb., 222; right of habeas
corpus: lb., 223 ; State may punish for other crime than one alleged: lb., 227; ''other
crime " in the United States laws means any offense indictable by the laws of the State
demanding the surrender : 17 Am. R., 114; what amounts to a charge of crime: lb.
See, also, 24 Howard, 66. One State will not surrender to another a prisoner who is
amenable to its own justice: 3 C. L. J., 604. Requisites of certificates of authentica-
tion : 3 C. L. J., 98. Revocation of warrant" 32 Am. R., 345 ; who is a fugitive : 32 Am.
R., 116. See Spear on Extradition.
§55. (58.) (62.) Delivery suspended, when. If any person demanded as a
fugitive from justice is, at the time of such demand, under prosecution
for an offense against the laws of this State, the Governor shall suspend
his delivery until the issue is determined as to his guilt, and if con-
demned, until he shall have suffered the penalty of the law imposed.
$56. (59.) (63.) Fugitives not demanded. When a person, charged with §4025.
the commission of an offense in some other State, shall flee into this, and
is pursued and caught, or some person in this State, finding, shall
arrest him, it is the duty of the Governor, on oath filed in his office of
the commission of the offense, and the identity and locality of the
party, to issue his warrant for his arrest, as in other cases, and com-
mand his lodgment in. any jail in the State, for as long as twenty days,
and if, at their expiration, there is no formal demand made by the
Governor of the State where the offense is alleged to be committed, he
shall be discharged from custody; but upon affidavit, made before any
proper officer, of the commission of the offense, and of such intended
application, the accused shall be held under it five days.
Warrants must be obtained quickly from the proper officer : 63 Ga. , 514.
§57. (60.) (&4.) Officers must execute warrants. When the Governor or
other officer issues such or any other warrant of arrest, it is the duty
of the Sheriffs, their deputies, coroners and constables, to execute them_
when placed in their hands.
§58. (61.) (65.) Governor may offer rewards. The Governor shall, in his (a) A cts of
discretion, offer, and cause to be paid, rewards for the detection or appre- ' p '
hension of the perpetrator of any felony committed within this State ;
[such reward shall not exceed the sum of two hundred and fifty dollars
in cases of felonies not capital, and not to exceed the sum of five hun-
dred dollars in capital felonies,] (a.); but no such reward shall be paid Acts of ist8
to any officer who shall arrest such person in the regular discharge of" ' p '
his duty, by virtue of process in his hands to be executed, nor to
any person who has arrested the offender previous to the publication
of the reward ; and whenever he receives reliable information that any
gin-house in this State has been unlawfully burned, or set on fire, shall
offer a reward of not less than two hundred and fifty, nor more than
22 PART I.— TITLE IIL— CHAPTER I.
The Governor : his powers and duties not specified in the Constitution.
five hundred dollars for the apprehension of the incendiary or incendi-
aries with proof sufficient to convict, and in no event shall said reward
be paid until after the conviction of such offender or offenders.
See note on Rewards in general note on " Principal and Agent,"
o C p°i74 829 ' §^9- (62.) (68.) May appoint commissioners of deeds. He shall have
§4198. power to appoint, in other States and Territories of the United States,
commissioners to take and certify the acknowledgment or proof of
deeds or other conveyance of property in this State, of depositions under
commissions or otherwise, of powers of attorney, (of wills executed by
persons devising or bequeathing property within the State,) and of
other instruments in writing required to be attested under the laws
of this State.
May take affidavit or administer oath as a magistrate here: 13 Ga., 462. Cannot
certify to the official character of a foreign officer: 24 Ga,, 489. As to attesting a mort-
gage of realty in New York : 46 Ga., 450.
Statutes of different States collected : ProfFatt on Notaries, §§ 158-168.
§60. (63.) (69.) Must grant commissions. He shall grant commissions
to all such officers of this State, including Senators and Representatives
in Congress, as are required to hold them, and in all cases he may, in
his discretion, issue a dedimus potestatem to such officers as are author-
ized to administer oaths requiring the qualification of the officer elect,
as provided by law, and to issue to him his commission. The forms
of all commissions shall be in the discretion of the Governor. Com-
missions thus issued are final, except where the Constitution and laws
otherwise provide.
g2360. §61. (64.) (70.) Shall issue grants. He shall issue all grants to lands
under the laws of this State, but such shall not be conclusive, but sub-
ject to the investigation of the Courts; and whenever such are declared
by the proper Court to have been wrongly issued, it is his duty to
issue another grant in accordance with such decision, if it so requires.
§62. (65.) (71.) Shall supervise public property. He shall have general
supervision over all. property of the State, with power to make all
necessary regulations for the protection thereof, when not otherwise
provided for. He must assign rooms in the Capitol to all officers who
must hold their offices there, and, in the absence of any legislative
provision, designate the purpose for which other rooms are to be
applied.
When the Governor can order a suit to be brought: 56 Ga., 485.
(a) \cts of §^- May sue for dues to the State. [Whenever the Governor of
1872, pp. 39- the State, after consultation with the Attorney-General of the State,
if there is such an officer, or without, if there is no such officer, shall
deem it proper to institute a suit or suits, for the recovery of a debt or
debts due the State, or money or property belonging to the State, in
his opinion, he shall be and is hereby authorized and required to insti-
tute such suits in the proper Court of this State, with no more restric-
tions on the right to sue than any other citizen for his own right or
property, and with the same rights as any citizen, before the Acts of
the Legislature of 1871, and to require the aid of the Attorney-General
of the State to begin and carry on such suits where practicable, and if
not, some other suitable and competent attorney, on such terms, as to
compensation, as he may agree upon, but the fees of such attorney
shall be conditional.] (a.)
May order suit: 56 Ga., 485.
§64. Governor may buy property in certain cases. [At all Sheriffs sales
under or by virtue of any fi. fa. in favor of the State of Georgia or the
Governor thereof,* the Governor may, by himself, or any one authorized
*The words, "except tax ft. fas.," stricken from this section by Act of 187&-9, p. 69.
PART I.— TITLE III.— CHAPTER I. 2:!
The Governor: his powers and duties not specified in the Constitution.
by him, bid for and purchase the property so sold : Provided, in no case (a) Act of
shall more be bid for such property than the amount due the State f^. '
upon such fi. fa.~\ (a.)
§65. Titles, how made. [The property so purchased, shall be for the d» Act of
use of the State, and the titles thereto shall be made to the Governor^ Feb -<
and his successors in office and assigns.] (b.)
§66. The Governor may. rent or sell the property. [The Governor may (e) Act of
rent out said property, or sell the same at public outcry to the highest ^7!;.
bidder, upon such terms as lie may deem best for the interests of the
State, and may make the necessary conveyances for the same: Provided,
such sale shall be advertised' in the same manner and for the same
time as Sheriff's sales.] (c.)
$67. Removal of liens. [In- case there be any exemption of any P ar Hoth A Fb f
of the property purchased, as provided in section 63, or the proceeds 1873.
I thereof, or any lien or incumbrance of superior dignity to the lien of
the State, the Governor may pay the amount so exempted, or the said
lien or incumbrance to the person entitled thereto.] (d.)
§68. Purchase to be reported. [The Governor shall report to the Gen-® A&tof
oral Assembly at its following session, any purchase, lien, or sale, 1873.
made under the foregoing provisions, giving full particulars of the
; transaction.] (e.)
§69. (66.) (72.) Shall appoint officers and fill vacancies. He shall ap-
point all officers and fill all vacancies, unless otherwise prescribed by
the Constitution and laws. All appointments to discharge a public
duty, by the General Assembly, or by the Governor under its author-
ity, are declared to be offices within the meaning of the Constitution.
Section cited: 44 G a., 76; 58/517.
§70. Mode of filling certain vacancies. . [In case of a vacancy from any {&)_ Acts of
cause, in any office, the full term of which, by the Constitution, is tojg^ - "' p "
be filled by the Governor, with the advice and consent of the Senate,
it shall be the duty of the Governor to appoint and commission some
qualified person to supply it until the next meeting of the General
Assembly, when said vacancy shall be filled in the same way and
manner described in the Constitution for filling the full term of such
office. All vacancies which may hereafter occur during the session of
the General Assembly, or may then exist, as are provided for in the
fourth clause, of the second section of the fourth Article of the Consti-
tution of this State, shall be filled in pursuance of the provisions of
this section.] (a.)
§71. What Governor shall appoint Judges. [Whenever the terms of the W Aet %° f
offices of the Judges of the Supreme Court, or of the Superior Court, '"' "
or of the Attorney or Solicitor-General, shall expire on the first day of
January, and the term of office tf a newly-elected Governor shall begin
on the same day, the terms of said officers shall not be deemed to
expire until the inauguration of the newly-elected Governor; and
upon said newly-elected Governor shall devolve the duty of appointing
the said officers for the succeeding terms; and the terms of the officers
appointed by said newly-elected Governor shall expire on the same
dates as if they had been appointed on said first day of January.] (b.)
§72. (67.) (73.) May appoint and remove secretaries and others. He has
the power of appointing the following officers, who shall hold their
offices during the time for which he is Governor, subject to be removed
at his pleasure, viz. :
[Two] (a.) Secretaries of the Executive department.
A Messenger for his office. (a)Constof
A State Librarian. sfeUon" 4 '
A guard for the Capitol buildings. clause 10'
24 PART L— TITLE III.— CHAPTER I.
The Governor: his powers and duties not specified in the Constitution.
A person to keep the Capitol grounds and other State property at
the seat of Government in proper order.
§73. (68.) (74.) Shall appoint officers named in the Code. He shall also
appoint all the officers of the following State institutions named in
this Code, and laws hereafter enacted amendatory thereof, unless meni-
als, servants, day-laborers, or otherwise required, viz :
Officers of the Penitentiary.
Trustees of the Lunatic Asylum.
Trustees of the Asylum for the Deaf and Dumb.
Trustees of the Asylum for the Blind.
Officers of the Western and Atlantic Railroad.
Keepers of the Arsenal and Public Arms.
§74. (69.) (75.) May employ agents. And he has power to engage the
§§22, 1486. services of any competent person for the discharge of any duty required
by the laws, and essential to the interests of the State, or necessary, in
an emergency, to preserve the property or funds of the State.
May bring suit : 56 Ga. , 485.
§75. (70.) (76.) May suspend collection of taxes. The Governor may
c c p°i025 21 ' suspend the collection of the taxes, or any part thereof, due the State,
§912. until the meeting of the next General Assembly, but no longer; nor
shall he otherwise interfere with the collection thereof.
§76. (71.) (77.) Payments from the treasury. All payments . from the
c. C p°io28! 6 ' treasury, unless otherwise provided, shall be made upon the warrant of
the Governor, and he may withhold his approval on any account
audited and certified by the Comptroller-General. The warrant shall
always specify on what appropriation or fund it is drawn.
Warrants revocable until they are paid: 56 Ga., 674.
§77. (72.) (78.) Shall cause to be kept a journal of his official acts. The
Governor shall cause to be kept and preserved in the Executive office
the following books of record:
1. A journal or minute book, showing all of his official acts.
2. A book of appropriations, in which shall be entered a full account
of all annual appropriations, setting forth the amounts under their
appropriate heads, together with the date of his warrant for such appro-
priation, and in whose favor drawn.
3. A book giving a statement of the public debt of the State, the
dates and numbers of the bonds issued, in whose favor, and for what
amounts, the date of payment and the disposition thereof; also, a full
and accurate account of all sums of money that are set apart as a sink-
ing fund for the redemption of the public debt, particularly setting
forth the amount for the several specific purposes, when drawn, and in
whose favor drawn. •
4. A book in which shall be kept copies of all bonds of agents dis-
bursing public funds; also, a schedule of all bonds and other evidences
of debt due to the State, and the disposition made thereof.
5. A book of commissions, showing the dates when issued, for all
officers, civil and military, in this State.
6. A book showing the exact condition of the educational fund of
this State, and the annual income thereof.
7. A book or books containing a list of the respective numbers, dis-
tricts, sections and counties of the several lots of land disposed of by
the several land lotteries, and the names of the drawers of each, to
whom and when granted, and a similar schedule of all lands sold by the
State, by whom purchased, and to whom and when granted.
8. He shall also keep, and cause to be carefully filed away, properly
marked or numbered, all documents appertaining to his office, whether
PART I.— TITLE III.— CHAPTER IL-IIL 25
The Executive office and residence of the Governor — Fiscal year and reports.
there as the place of deposit or received by mail or express, and keep a
book as an index or key to the same.
9. And any other books or files that, in his judgment, his depart-
ment needs.
§78. (73.) (79.) Executive seal. There shall be a seal of the Executive
department. The device shall be the same as that now used therein,
and shall not be altered except by authority of the General Assembly.
General Note on Chapter I. — (Governor.) — Governor and subordinates in Exec-
utive department not subject to subpoena by grand jury: 27 Am. R., 667; see, also,
22 N. J. {eq.), 111. Governor not answerable to Courts for manner in which he dis-
charges discretionary duties confided to him; his subordinates and agents answerable
only to himself : 6 C. L. J., 82 ; 2 Thomp. Neg., 816. Appointments by, to office, during
the interim of sessions of the General Assembly: 7 Cal., 519; 1 111., 68; 10 Cal., 1. Ap-
pointments by, generally: 21 Ind., 516; 1 T. B. Mom, 82; 11 La. Ann., 486; 16/134;
3 Mete, 207 ; 40 N. Y., 113; 68 N. C, 457, 429, 546; 1 Hask., 764. Removal by: 6 Cal.,
291; 43 Pa. St., 372; 24 Tex., 253; 44 Miss., 808; 44 Mo., 213; 24 La. Ann., 432; 90 111.,
186; 13 Am. R., 131. In absence of Attorney-General, Governor is bound to intervene
in behalf of State to protect its interest by taking appeals: 22 La. Ann., 602. As to
pardons by : See note to Constitution.
CHAPTER II.
THE EXECUTIVE OEFICE AND RESIDENCE OF THE GOVERNOR.
Section 79. Where Executive office must be kept.
§79. (74.) (75.) (80.) (81.) Executive office and residence. The Execu-
tive office shall be in the State House at the seat of Government. If,
from any cause, there is no State House, or it has to be abandoned,
then at such place at the seat of Government as the Governor may
direct, and not elsewhere, unless made necessary from invasion, insur-
rection, pestilence, or rebellion. The Governor shall reside at the seat
of Government during his term of office.
CHAPTER III.
FISCAL YEAR AND REPORTS.
Section. I Section.
79. (a) Fiscal year. I 79. (b ) Reports — where filed.
§79. (a.) Fiscal year begins, when. The fiscal year in this State shall Act of 28th
commence on the first day of January, and end on the thirty-first day ept ''
of December of each year, commencing with the year 1881; and all
public officers of this State shall keep their official accounts in accord-
ance therewith. •
There shall also be a year for official reports, distinct from the fiscal
year; said official report year to include the twelve months, ending
thirt}^ daj^s next preceding the regular meeting of the General Assem-
bly, and all the public officers of this State shall make and publish,
annually, their official reports in accordance with the official report
year herein provided for.
§79. (b.) Certain reports to be filed with Librarian. It is the duty of the Actsofis76,
Governor, Comptroller-General, Treasurer, and all other officers who p ' '
are now, or may hereafter be, required to make reports to the General § 231 -
Assembly, to furnish the State Librarian with at least ten copies each
of said reports, and it is his duty to have the same bound and pre-
served in the Library for public use.
26
PART I.— TITLE III.— CHAPTER IV.
Article 1. — Of the Secretary of State.
CHAPTER IV.
THE SECRETARY OF STATE, TREASURER, AND COMPTROLLER-GENERAL
Article 1. — The Secretary of State.
Article 2. — The State Treasurer.
Article 3. — The Comptroller- General.
ARTICLE I.
OF THE SECRETARY OF STATE.
Section.
80. His election and term.
81. Bond of Secretary of State.
82. Must reside at the Capital.
83. Must furnish applicants with records.
84. He shall receive no perquisites.
Section.
85. Secretary of State and Surveyor-General
consolidated.
86. The Great Seal of the State.
87. Other duties.
88. Shall not speculate in wild lands.
1838, Art. 4, §80. Secretary of State, his election and term. There shall be a Secre-
8 C Const ar of ^ ai T °f State, elected by persons qualified to vote for members of the
1877, Art. 5, General Assembly, at the same time and in the same manner as the
par! i. Governor.
§81. (76.) (82.) Must give bond. Before entering on the duties of his
Act of 1843, office, he shall execute a bond with sufficient securities, to be approved
" p ' ° " by the Governor, in the sum of ten thousand dollars, conditioned for
the faithful performance of all the duties of his said office, and all such
duties as shall be required of him by the General Assembly or the
laws of this State, and for a faithful account of all the public money
or effects that may come into his hands during his continuance in
office. It shall be filed in the Executive office, and a copy thereof,
certified by one of the Governor's secretaries, under the seal of the
Executive department, shall be received in evidence in lieu of the
original in any of the Courts of this State.
§82. (77.) (83.) Shall keep his office in the Capitol. He shall be provided
Act of 1861, with suitable apartments in the State Capitol, furnished at the State's
P* 72 - expense. He shall reside at the Capital, and keep his office open daily,
Sundays and holidays excepted.
§83. (78.) (84.) Shall furnish copies of records. He shall furnish to all
applicants, upon the payment of the prescribed fees, copies of all
records and public documents within his office, and shall attach the
Great Seal of the State to such transcripts as the Governor or General
Assembly may direct.
§84. (79.) (85.) Shall have no perquisites. He shall receive no perqui-
Act °fi§26, s ites for any official act, but the fees prescribed shall be collected by
him and paid into the State treasury.
Act of 1838, §85. (80.) (85.) Office consolidated with Surveyor- General. [The offices
(a) Acts of of Secretary of State and Surveyor-General are consolidated, and the
1865-6, p. Secretary of State is required to discharge the duties of both of said
Actsofi86i, offices.'] (a. )
p " /2- 1. It is his duty to keep the Great Seal of the State, the original
Acts passed by the General Assembly, and all the public records of the
State not appertaining specially to other offices. He shall look to and
preserve the records and papers belonging to the Senate and House of
Representatives. He shall see that the original journals of both houses
are deposited in and kept in his office.
PART I.— TITLE III.— CHAPTER IV.
Li
Article 1.— Of the Secretary of State.
2. He shall attest all grants, and other public documents requiring §2351.
the Great Seal of the State, issuing from the Executive of the State.
3. He shall keep a record in proper books of all grants issued by the
iState.
4. He shall keep safely all bonds of agents appointed to disburse
'public money.
5. He shall provide all fuel, lights, servants or other contingents
'necessary for the General Assembly ; also, all stationery for their use,
and shall report the amount of the same to the Finance Committee of
the House of Representatives before the adjournment of the session.
He shall perform all other duties required of him by law, or which
[necessarily attach to his office.
[6. At least thirty days previous to the day of election of Governor, (a) Act of
members of the General Assembly, Representatives to Congress, electors J*^ 1 ^"
of President and Vice-President of the United States, and county
officers, he shall furnish each Ordinary of the State with printed forms
of returns, certificates and directions, together with any advice he may
deem necessary to secure proper returns ; and he shall provide and
keep on hand a sufficient quantity of self-sealing envelopes- of uniform
appearance and suitable size and quality for use in the elections afore-
isaid.] (a.)
§86. (81.) (86.) Great Seal to be kept in his office. The Great Seal of
Ithe State, adopted February 8th, 1799, and now on deposit in the office
)f the Secretary of State, is as follows:
1. It is of silver, and the size of two and a quarter inches in diameter.
2. The device on one side is a view of the sea shore, with a ship
bearing the flag of the United States riding at anchor near a wharf,
eceiving on board hogsheads of tobacco and bales of cotton, emblematic
of the exports of this State ; at a small distance a boat, landing from
the interior of the State, with hogsheads, etc., on board, representing
her internal traffic ; in the back part of the same side a man in the
act of plowing, and at a small distance a flock of sheep in different
pastures, shaded by a nourishing tree; the motto thereon, Agriculture
and Commerce, 1799.
3. The device on the other side is three pillars, supporting an arch,
with the word Constitution engraven within the same, emblematic of
the Constitution, supported by the three departments of Government,
viz: the Legislative, Judicial and Executive — the first pillar having
|engraven on it "Wisdom," the second "Justice/' the third "Moderation;"
bn the right of the last pillar a man standing with a drawn sword,
representing the aid of the military in the defense of the Constitution ;
the motto, State of Georgia, 1799.
§87. (82.) (109.) Duties heretofore devolving on the Survey or- General. Act of nxs,
The Secretary of State shall also discharge the following duties, here- c -' p ' 665,
jtofbre devolving on the Surveyor-General, to-wit :
1. To keep safely all the records of plats of land granted, and to report §872.
[the condition of such records to the Governor at least once a year.
2. To record all plats of land legally authenticated and returned to
him by the several county surveyors, or other surveyors acting by
authority, for which grants are sought, and to attach the originals
thereof to the grants.
3. To keep in his office correct maps of all the different surveys
(made by State authority) and of those comprising the land lotteries,
their divisions into numbers, districts, sections, and the like, having
for every district a separate map.
4. To keep a register of the various grantees thereto, and the dates
of the grants.
28
PART L— TITLE III.— CHAPTER IV.
Article 2.— The State Treasurer.
5. To keep correct maps of all surveys of rivers, harbors, swamps or
land, made by the special direction of the General Assembly.
6. He shall, when necessary, contract for the execution of new maps,
or the re-execution of, or repairs of, old maps, subject to the ratification
of the General Assembly.
7. He must certify under his official seal, as the Comptroller-General
is directed in section 107.
§88. (83.) (110.) Shall not speculate in wild lands. He shall not,
directly or indirectly, be interested or engaged in the purchase and
sale of wild lands on speculation, on pain of removal by the Governor
or the General Assembly.
General Note. — Grants are enrolled in the office of the Secretary of State : 17 Ga.,
551.
General Note. — Decisions relating to similar officer in other States: 8 Ind... 341; 10
Wis., 525; 2 Strobh, 250.
ARTICLE II.
THE STATE TREASURER.
Section.
89. His election and term.
90. His oath and bond.
91. His rights and duties.
91. (a ) His sureties on bond.
91. (b.) Approval of bond.
91. (c.) Record of bond
91. (d.) Renewal of bond.
92. Suspension of Treasurer.
Section.
93. Supervision of office.
94. His resignation, etc.
95. In case of default
96. His office — where -kept.
97. His duties specified. '
97. (a ) Shall keep bond book.
97. (b.) Subject to ft. fa.— when
§89. Election and term of office. There shall be a Treasurer of the
i8°77 S Art 5 State, wno shall be elected at the same time and in the same manner
sec.2, par.i! with the Governor. He shall hold his office for 'two years, and until
his successor is elected and qualified. The first election shall take
place on the first Wednesday in October, 1880. His salary shall be
two thousand dollars per annum.
§90. (84.) (87.) Treasurer's oath and bond. Before entering on the
Acts of 1876, duties of his office, the State Treasurer shall take an oath before the
p. 126. Governor, or one of the Judges of the Supreme or Superior Courts of
this State, to support the Constitution of the United States, and the
Constitution of the State of Georgia, and faithfully to execute the
duties of his office, which oath shall be in writing, and subscribed to
by the State Treasurer, and filed and recorded in the Executive office.
The State Treasurer shall also give bond to the State of Georgia, with
security or securities, approved by the Governor, in the sum of two
hundred thousand dollars, conditioned as follows :
1. That he will faithfully discharge, execute and perform all and
singular, the duties of him required, and which may be required by
the Constitution and laws.
2. That he will faithfully account for and pay over all moneys that
may be received by him, from time to time, by virtue of his office.
3. That he will safely deliver to his successor all books, moneys,
vouchers, accounts and effects whatsoever belonging to his said office.
§91. (85.) (88.) His rights and duties. His rights and duties are the
Act of 1826, same as those of the Secretary of State, set forth in sections 82 and 83,
/~i t\ i hot »/ / '
except the use of the Great Seal. He shall receive no perquisites for
any official act, but the fees prescribed shall be collected by him and'
paid into the State treasury.
§91. (a.) Securities on bond. Each security on the bond of the Treasurer
shall make oath that he 'is "bona fide" worth, over and above his
debts, exemptions and liabilities of all kind, property in realty and*
C. p. 1027.
PART I.— TITLE III.— CHAPTER IV.
Article 2.— The State Treasurer.
personalty, not less than some specified sum, to be stated in said oath,
which oath shall be attached to said bond, and recorded therewith. Actsofi876,
He may, by express stipulation in writing, limit his liability toa p - 127,
specific sum, to be stated in said bond ; and all the property of the
Treasurer, to the full amount of said bond, and the property of the* L)1 '
securities to the amount for which they may be severally bound, shall
be liable for the faithful performance by the Treasurer of the duties of
his office, as set forth herein, from the date of the execution of said
bond ; and a lien is hereby created in favor of the State upon the prop-
erty of the Treasurer to the amount of said bond, and upon the property
of the securities upon his said bond to the amount for which they may
be severally liable, from the date of the execution thereof.
§91. (b.)' Governor's approval of bond. The Governor shall not approve Actsof i*7<;,
any bond of the Treasurer unless the sums so sworn to, as above.set forth, p - 127 -
and the specific sums in which the security or securities have limited
: their liability shall, in the aggregate at least, equal two hundred
thousand dollars, the amount of the penalty thereof, and he shall be
satisfied of the responsibility of each security.
§91. (c) Record of bond. The bond of the Treasurer, when duly exe-Actsofi876,
I cuted and approved, shall be recorded in the Secretary of State's office, p " •
and filed in the Executive office, and a copy thereof, certified by one of
the Governor's secretaries, under the seal of the Executive department,
or a certified copy taken from the records of the Secretary of State's
office, shall be received in evidence, in lieu of the original, in any of
the Courts of this State.
§91. (d). Insufficiency of security . It shall be the duty of the Governor Actsof isth.
I at all times, when, in his opinion, the security or securities of any Treas- p " 12 '"
1 urer have, or are likely to become, invalid or insufficient, to demand
and require such Treasurer forthwith to renew his bond to the State of
Georgia, in the penalty and according to the form prescribed in this
article, and in case of neglect or refusal by any Treasurer to give bond, ggm, 598.
with security or securities, as aforesaid, within ten days after thesame
shall be demanded and required by the Governor, such neglect or
refusal shall be a disqualification under the law, and shall create a
vacancy in said office of Treasurer ; and the Governor is hereby required
to proceed forthwith to appoint a fit and proper person to fill the
vacancy occasioned thereby, until the next session of the General
Assembly thereafter, and such appointee shall give like bond and
security, and in the same manner, and upon the same terms as pre-
scribed for the Treasurer in this article.
§92. Suspension of Treasurer. Upon representation made to the Gov- Aetsoii876
ernor by any person under oath, or where the Governor has received p - 12 '-
reliable information from any source, that the Treasurer is insane, or
manifestly insolvent, or that he has absconded or concealed himself, or
is guilty of conduct which is to the hazard of the public treasury, it shall §508.
be his duty to call a council to be composed of the Attorney-General,
Secretary of State, and Comptroller-General, and if they, or a majority
of them, after an examination into the truth of such representation,
shall find the same to be true, the Governor shall suspend the Treasurer
from office until the next session of the General Assembly thereafter,
and issue proclamation thereof, and he shall submit to said body his
action in the premises and the reasons therefor. In the event of a
suspension of the Treasurer under the provisions of this section, the
Governor shall appoint some fit and proper person to discharge the
duties of said office during the period of such suspension, who shall
take an oath and give bond and security upon like terms and in the
same manner as provided in this article for the Treasurer elected by
the people.
80 PART I.— TITLE III.— CHAPTER IV
Article 2.-^-The State Treasurer.
§93. (87.) (90.) The Governor to exercise general superintendence over.
Acts of 1876, The Governor may exercise a general superintendence over the office
p - V1S - of State Treasurer, not inconsistent with the provisions prescribed for
it by law, and may, at any time, appoint some competent person to
examine into the state of such office, for any period of time he may
designate, and report its condition to him ; and shall have power to
require, in writing, of such Treasurer, to withdraw the public funds
from any place of deposit deemed unsafe by him.
§94. (88.) (91.) Treasurer resigning or removing. If the Treasurer
Actsofi876, resign or is removed, he must, within ten days thereafter, state his
p- 128 > accounts to the Comptroller-General, and deliver the books, papers and
money of the treasury to his successor, taking his receipt therefor ; and
the Comptroller-General must record a statement of such settlement
and receipt in his office, and report the same forthwith to the Governor.
§95. (89.) (92.) Treasurer in default or absenting himself. If the Treas-
Actsof 1870, urer fail to comply with the provisions of the preceding section, or if
p ' * he dies, absconds, or absents himself without sufficient cause for as long
as twenty days, the Comptroller, after giving ten days' notice, by pub-
lication in some public gazette at the seat of Government, must proceed,
and in the presence of any person who may appear in behalf of the
late State Treasurer, or if none appear, in the presence of the Attor-
ney-General, to state his account and deliver the books, papers, money,
and all other appurtenances of his office to his successor, taking his
receipt therefor, and record and file such statement and receipt in his
office, and report forthwith to the Governor. (Shall keep his office in
the Capitol, and shall furnish copies of records.)
§96. (85.) (88.) OjJi.ce, where kept. He shall be provided with suitable
Actsof-1876, apartments in the State Capitol, furnished at the State's expense. He
p. 128. shall reside at the Capital, and keep his office open daily, Sundays
and holidays excepted j and he shall furnish to ' all applicants, upon
the payment of the prescribed fees, copies of all records and public
documents within his office. He shall receive no perquisites for any
official act, but the fees prescribed shall be collected by him and paid
into the State treasury. He is authorized to employ a suitable person
as clerk to assist him in the duties of his office, and to remove him at
his pleasure ; and such clerk shall receive a salary of sixteen hundred
dollars per annum.
§97. (86.) (89.) Duties of Treasurer. It is the duty of the State
Treasurer:
1. To receive and keep safely all the money which shall be paid to
Aetsof 1876, him in behalf of the State, (giving certificates therefor, which certifi-
cates shall specially set forth the amount, on what account, and by
whom paid, and shall be lodged as vouchers in the Comptroller's office,)
and to pay out the same only upon the warrants of the Governor, when
countersigned by the Comptroller-General, excepting the draft of the
President of the Senate, and Speaker of the House of Representatives,
for sums due to the members and officers of their respective bodies.
2. It shall be the duty of the Treasurer to keep a durable book, wherein
he shall enter, each day, in charge against himself, all and every sum
of money received by him, stating from whom and on what account
received, and, per contra, crediting himself with any and all sums
disbursed by him in any manner, stating to whom paid, when paid,
and on what account or purpose paid ; and for all disbursements, what-
soever, he shall take receipts or other vouchers therefor. He shall also
keep a true and faithful record in a book, of all warrants drawn by the
Governor on the treasury, stating the number of the warrant, the
amount, the date and the payee of the same, and to what fund the
same is chargeable, and he shall carefully keep on file said warrants.
PART I.— TITLE III.— CHAPTER IV. 31
Article 2.— The State Treasurer.
3. The Treasurer shall keep a general ledger of accounts, into which
he shall post all the receipts and disbursements of his office, arrang-
ing the receipts and disbursements under the heads to which they
properly belong. He shall open, in said ledger, an account with each
appropriation made by the General Assembly, and with each salaried
officer of the State, in which he shall credit the object for which the
appropriation is made, with the amount appropriated to the object,
and shall charge such appropriation, with the payments made by him,
upon the same. He shall open in said ledger a general, account of
receipts and disbursements ; which last mentioned account he shall
Compare with the books kept by the Comptroller in his office, on the
last day of each quarter of the fiscal year ; and, after having compared
them, shall strike the balance on said account, showing the amount at
that time in the treasury to the credit of the State, and he shall carry
said balance forward on the book to the general account for the next
quarter.
4. The Treasurer shall keep accounts in the books of his office with
the different banks in which the public revenue or money is deposited,
on which balances shall be struck at the aforesaid periods, showing the
amount in bank to the credit or debit of the State ; but the deposits of
the public revenue or money shall be made only in such bank or banks
as the Treasurer may select, with the approval of the Governor, and
the written approval of the Governor designating the depository or
depositories of the public funds, shall be entered of record in the Exec-
utive office. The bank or banks where public deposits are made by
the Treasurer, or by any other person by the direction of the Treasurer,
shall transmit to the Comptroller-General and Treasurer monthly state-
ments of the deposits, checks and drafts received and paid by them on
account of the treasury.
5. The Treasurer shall also keep a general cash account, which shall Acts of we,,
be balanced at the expiration of each quarter of the fiscal, year, showing p " m "
the balance in the Treasury at the end of each quarter.
6. The Treasurer shall also keep check books, within which there
shall be suitable margins. The checks shall be numbered by numbers
in the margins corresponding with the numbers upon the checks ; and
he shall note in the margin the date and amount of the check, the ap-
propriation to which it shall be charged, and the person to whom it
shall be issued ; and he shall balance his accounts with all banks or
other depositories holding State deposits as often as once in each month.
7. Preceding each annual session he must submit to the Governor
detailed estimates of the probable receipts and expenditures for the
next fiscal year, stating the source of income and the probable amounts
to be received therefrom ; also, the objects of appropriation, and the
probable necessities of the treasury.
8. He shall pay all funds pledged to the payment of the public debt,
or interest thereon, or to any object of education, and to these objects
only, and in no wise to any other purpose. All payments from the
treasury shall be paid from the fund appropriated for such purpose,
and not from any other.
9. At the end of every quarter of the year, he shall make a written
report, under oath, to the Governor, of the several amounts received by
him during the three months preceding such report ; and he shall also
submit to the Governor itemized monthly reports of the condition and
transactions of the treasury, and the information contained in such
monthly reports may be given to the public from time to time, at the
discretion of the Governor.
10. He shall keep safely the scrip for bank stock, the State bonds,
and other evidences of the educational fund, and manage and control
32 PART I.— TITLE III.— CHAPTER IV.
Article 2. — The State Treasurer.
— "
the same for the purposes to which they are pledged. He may, wit]
the approval of the Governor, deposit all funds set apart for the purpos
of education, or any other purpose not required for immediate use, ii
any chartered bank of this State, subject to his draft as Treasurer, and
with the Governor, make such contract with said bank for the use c
such funds as may be beneficial to the State. If, at any time, when th
' Legislature is not in session, the Governor be of opinion that the safet;
of the public funds requires it, he shall, by his order in writing, direc
the Treasurer to transfer the money held by any depository or de
positories, on account of the treasury, to any other safe and prope
depository or depositories, as the Treasurer may select, with th
approval of the Governor, which approval shall be in writing, and shal
designate the depository or depositories thus selected, and the Treasure!
shall .thereupon transfer the same as directed ; but all such orders shal
be duly recorded in the Executive office, and, as soon as possible there
after, be submitted to the Legislature, with the reasons therefor.
11. The Treasurer shall not, under any circumstances, use himseli
or allow others to use, the funds of the State in his hands; and fo
every violation of this section he is liable to the State for the sum c
five hundred dollars, as a penalty, or a forfeiture of his salary, if sai<
forfeiture will pay the penalty incurred.
12. He is authorized to pay all officers of the State, whose salarie
are fixed by law, seventy-five per cent, of the amount for which service
has been actually rendered at the date of said payment, taking receipt
for the same, which shall be his vouchers and exhibits to Executiv
warrants for said salary ; and may also pay members of the Genera
Assembly in the same way, where their accounts are duly audited
unless prevented by the resolution of either or both branches of th'
General Assembly.
13. He shall annually report to the Governor the amount of th
State debt beaming interest for each year, distinguishing between th
sterling bonds, if any, and Federal ; the rate per cent, paid on each kin
of bonds, the amount of each rate paid; also the exchange, if any; pre
miums on gold, if any ; and the aggregate amount of interest paid ii
each year, and the probable amount clue and unpaid at each semi-an
nual payment, and the reasons for such non-payment, as far as can b
ascertained by him.
14. When he pays the interest or principal of the State debt, upoi
a warrant issued in his favor, he shall stamp or mark, in a plain an<
indelible manner, the coupons or bonds on which the payments ar
made, "paid," and deposit the same in the vault of the treasury, to b
preserved in the Treasurer's office, with the same care as the funds o
the State, subject to the order of the General Assembly.
15. He shall not pay any appropriation due and not called for withii
six months after the expiration of the fiscal year for which it is apprc
priated, but it reverts to the general fund in the treasury.
16. All annual reports required to be made to the Governor by th
Treasurer shall be made on or before the 31st day of December, an«
shall be filed in his office, and by him laid before the General Assem
bly, in connection with his first annual message thereafter.
Warrants are revocable : 56 Ga. , 674.
§97. (a.) State bonds, registry and payment. The Treasurer shall kee]
Acts of 1876, a book in which shall be registered the bonded obligations of the Stat
*?- > p. 132. under appropriate headings, stating the Act by which the same i
authorized, the amount of bonds issued thereunder, the rate per cent
|156. per annum of the interest thereon, the denomination of said bonds
and the signatures thereto; and said registration by numbers shal
PART I.— TITLE III— CHAPTER IV.
Article 3.— Of the Comptroller-General.
-)llow such captions, with suitable spaces opposite to and pertaining
o said particular numbers of each bond, wherein shall be recorded, in
nk, the payment of each coupon on or after its maturity, by writing
n ink the full word " paid," and said book of registration of bonds
hall have suitable and appropriate columns, wherein shall be recorded
he numbers of said bonds, the date of negotiation or issue of each bond,
he name of the person to whom sold or issued, the date of the pay-
nent of each bond, and the name of the person to whom said bond was
>aid, conforming in the foregoing particulars to the "standard bond
)ook" submitted to the General Assembly at the session of 1876, by the
Joint Finance Committee thereof.
§97. (b.) Failing to perform, duties — -fi. fa. instanter. If the Treasurer
jails to perform the duties of his' office, misapplies or uses the funds of Actsof
the State, fails to account for and pay over any moneys that he may p ' 182
lave received by virtue of his office, whereb}^ he becomes liable to the
■Uate, it shall not be necessary to sue his official bond, but the Gov-
srnor is hereby authorized to issue a fi. fa. instanter against the Treas-
urer and his securities for the amount clue the State by the Treasurer,
with the penalties and costs ; said fi. fa. to be directed to all and singu-
ar the Sheriffs of said State, and shall be executed by them; and the
Treasurer and his securities shall have only those defenses now allowed
Tax Collectors against fi. fas. issued by the Comptroller-General against
phem.
Genekal, Note. — Decisions relating to similar officer in other States: 14 La. Ann.,
225; Gilm. (Va.), 235; 10 Wis., 525; 55 Me., 372; 4 Md., 189; 40 Mich., 320; 44 Wis.,
324; 41 N. J. L., 324, 435; 11 S. C, 195; 33 Ark., 276; 23 Am. D., 336.
187fi
ARTICLE III.
OF THE COMPTROLLER-GENERAL.
Section.
98. His election and term.
99. Comptroller's bond.
100. His rights and duties.
101. His duties specified.
102. Annual report to the Governor.
103. His authority.
104. Improvement in revenue laws.
105. Books of appropriations and warrants.
106.
107.
Bonds of tax collector and receiver.
Must give copies of office papers.
Section.
108. Official seal.
109. Delivery of office to successor.
110. Additional fees,
111. Additional duties.
112. Shall not speculate in wild lands.
113. May have clerk — salary.
. 114. Agricultural statistics.
114 (a.) Legislature may suspend.
114. (b.) Governor may suspend.
114. (c.) Officers pro tan.
§98. Comptroller, election and term. There shall be a Comptroller-
General elected by persons qualified to vote for members of the Gen-
eral Assembly, at the same time and in the same manner as the Gov-
ernor.
§99. (92.) (94.) Bond of Comptroller. The Comptroller-General must
give a bond, conditioned the same as that of the Secretary of State, for
the sum of twenty thousand dollars, subject to the same rules and
regulations.
§100. (93.) (95.) His rights and duties. His rights and duties are the
same as those of the Secretary of State, set forth in sections 82 and 83,
except the use of the Great Seal. He shall receive no perquisites for
any official act, but the fees prescribed shall be collect 3d by him and
paid into the State treasury.
§101. (94.) (96.) Account of appropriations, mid other duties. It is
moreover the duty of the Comptroller-General —
1. To keep an account showing the several appropriations authorized
by law, the time when the same are drawn from the treasury, in whose
favor, and to what fund charged.
3
Act of 184."
C. p. 1034.
Act of 182G
0. p. 1027.
Act of 179V>.
C. p. 1022
Act of 1 821.
C. p. 1023.
Act of ,1823.
C. p. 102,"..
34 PART I.— TITLE III.— CHAPTER IV.
Article 3. — Of the Comptroller-General.
Act of 1838, 2. To [examine, check, andj countersign all warrants upon the
!\'ctof°i839, treasury drawn by the Governor, [President and Speaker, and charge
<£?• \°fkj the amount thereof to the funds on which they may be respectively
•2 ( p.°289. drawn, previous to their being presented to the Treasurer for pay-
<;u Acts of ment.] (a.)
istii, p. si. g rp Q au( |it all accounts against the State, and allow or reject the
same before they are submitted to the Governor.
4. To examine all the digests of tax returns forwarded to his office
by the several receivers, and note and correct all mistakes therein, and
notify the collector of such corrections.
5. [To settle with the several Tax Collectors and all other persons
ib) Acts of indebted to the State, and in all cases where payments may be made at
issi, p. 8i. ^g treasury to give receipts for the same, founded on the Treasurer's
certificates.] (b.)
6. To collect all amounts due from defaulting collectors of taxes, and
'^■ m - issue execution therefor against them and their securities.
Execution not to be issued against party who is not legal Tax Collector: 3 Ga., 233.
Execution issued by: 27 Ga., 69: Courts cannot enjoin an execution issued by: 46 Ga
350.
7. To see that no draft or warrant be countersigned by him to be
paid out of any appropriated fund, after the same has been exhausted ;
and in such case, or in any case of illegal payments from the treasury
upon warrants countersigned by the Comptroller, he, as well as the
Treasurer, with all their securities, are jointly and severally liable
upon their several bonds for the repayment of such amounts, with all
expenses of prosecution, to the State.
8. To issue his draft, payable to the Treasurer, for the amounts of all
dividends or taxes due by chartered banks in this State, or by the agen-
cies of foreign banks, and on failure to pay the same, to issue execution
therefor.
9. To receive and keep safely and collect all evidences of debt due to
the State from any other source than taxes, and pay over the same to
the Treasurer as soon as received.
10. To notify the Attorney and Solicitors-General, or any other at-
torney, in his discretion, of all executions against defaulting Tax Col-
lectors, and require of them annually a report of the state or condition
of such executions prior to the session of each General Assembly.
11. To keep a book in which to enter all bonds taken since the third
day of March, 1856, and to file the originals in his office.
12. To have made suitable indexes to the record books in his office.
13. To audit the accounts of all agents disbursing public money.
§102. (95.) (97.) Shall report to the Governor annually. To make a
c c p°i024 21 ' re P or t annually to the Governor, showing —
Act of 1828, 1. An account current, from his books, between the Treasurer and
Act of°?839, ^ ne State of all receipts and payments, including amounts paid on the
a ?' niis' drafts °f the President and Speaker, as reported to him by the Treasurer,
c. p. 1033. ' 2. A statement of the taxes paid to the State by each of the counties,
as appears by the digest thereof, and the counties whose Collectors are
in default, and the amount of such default.
3. A statement of all evidences of debt due the State and uncollected,
which may remain in his office, the condition of the same, the name of
the solicitor or attorney having it in charge, and his report of it.
4. A statement of the educational fund of the State, its annual
income, the amounts paid out, when and to whom.
5. A statement of the condition of the public debt of the State, the
amount of interest paid, and the fund from which paid.
6. A statement of the accounts of all officers and agents disbursing
■ public money, and the names of such as have failed to comply with the
PART I.— TITLE III.— CHAPTER IV. 35
Article 3. — Of the Comptroller-General.
laws relating to their offices and appointments, and the several sums
for which they are in default.
7. The salaries and pay of all officers of the State.
8. The incidental expenses of the General Assembly, Executive and
Judicial departments.
9. All sums paid or due to individuals by special contract.
§103. (96.) (98.) Authority of Comptroller. " He has authority —
1. To settle up the business of the office for previous years.
2. To allow Receivers and Collectors of taxes their commissions, and Acts of 185*.
to balance the tax books and other books of the office upon satisfactory g^'
proof of payment or settlement.
3. To collect all unpaid taxes of previous years.
4. To administer oaths to all persons in like manner as Judges of the Acts of i«7*
Superior Courts and Justices of the Peace. ' p '
§104. (97.) (99.) May suggest improvements to revenue laws. In his annual Act of 1821 ,.
report the Comptroller-General shall suggest such improvements in the ' p ' *
revenue laws as his experience and observation may approve. His
report must be made at the time the Treasurer's is, and likewise com-
municated to the General Assembly.
§105. (98.) (100.) Must record appropriations and warrants. He must Actsofi839„
keep in his office a well bound book in which shall be entered, in ' p '
alphabetical order, the full amount of all annual appropriations, setting
forth the amounts under their several heads ; all warrants that he may
check and pass, together with the fund on which it is drawn, the time,
amount, and in whose favor drawn; and make all entries necessary to
a true exhibit of the finances of the State.
§106. (99.) (101.) Must record Tax-Collector's and Receiver's bonds. He Acts of 1855.
must keep a book in which to enter all bonds taken of Tax-Collectors -6 > p- 276 -
and Receivers, and keep the same on file in his office. He shall collect (a) Act of
all unpaid taxes of previous years at a compensation of five per centum ^73 Feb,:
on the amount collected : [Provided, nevertheless^ that the said Comp-
troller shall not receive compensation for the collection of any tax that
became due within one year previous to his entering on the duties of
his office.] (a.)
§107. (100.) (102.) Must give copies of papers. He must certify under
his official seal, at all times when necessary for the public use, and on
application and payment of his legal fees therefor, for private use,
copies of any papers kept in his office.
§108. (103.) Official seal of the Comptroller. [The established official (a) Acts of
seal of the Comptroller-General's office is as follows : Circular in form, 18/0 ' p * 12 '
one and a half inch in diameter, made of brass, with a human hand
holding a pen in the attitude of writing, in the center, surrounded by
the words, " Comptroller-General's Office, State of Georgia."] (a.)
§109. (101.) Must settle with successor. If the Comptroller resigns, or is
removed, he must immediately state his account and deliver every-
thing pertaining to his office to his successor ; or if he dies, absconds,
or absents himself for as long as thirty days without the Governor's
permission, the Governor may, without delay, declare the office vacant,
supply his place by appointment, examine the condition of his office,
and deliver over to the appointee.
§110. (102.) [Repealed, see Acts of 1875, p. 15.]
§111. (103.) (105.) His report and what it must contain. The Comp- Aetsofi85*>,
troller-General must make out, for the use of the General Assembly — p ' G/ *
1. A table containing the taxable property and other items on the
tax digest of each county for the year in which he makes his annual
report.
2. A table annually of the polls in each county for the year immedi-
ately preceding his report; the number of voters in each county at the
36 PART L— TITLE III.— CHAPTER IV.
Article 3.— Of the Comptroller-General.
general election next preceding his report; the number of children in
each county returned for participation in the educational fund, and the
amount drawn by each county from said fund; the amount drawn by
each county for pay of members of the General Assembly; the total
amount drawn by each county from the treasury, and the total amount
of net tax paid into the treasury for the year preceding by each county.
Al^o, to furnish such other statistical information connected with his
office as may be useful to the General Assembly. The Annual reports
of said officer and of the Treasurer must contain only the available
funds or cash in the treasury as the balance therein. They are also
required to report separately and under the head of "Assets belonging
to the State," all bank or railroad stocks or bonds, or other assets ; the
State Road to be reported without any stipulated value. Such officers
are authorized to make such transfers or alterations on their books as
are necessary to comply with the preceding section. The items
"Darien Bank Bills," Western and Atlantic Railroad scrip, and uncur-
rent funds hitherto reported, must be sealed up, remain in the treasury,
and be left out of all future annual reports of said officers.
§112. (104.) (106.) Shall not speculate in wild lands.. He shall not.
directly or indirectly, be interested or engaged in the purchase and
sale of wild lands on speculation, on pain of removal by the Governor
or the General Assembly.
•fa) Acts of §113. (105.) May appoint and remove clerk. [He is allowed a clerk, to
H862-3, p. 56. be appointed and removable by him; and such clerk shall receive an
C p°250. annual salary of sixteen hundred dollars.] (a.)
[§114. Repealed. See Acts of 1875, pp. 5, 6.]
§114. (a.) Suspension of Comptroller. The General Assembly of this
Acts of 1878 State may suspend from the functions and duties of office, either the
-9, p. 30. Treasurer or the Comptroller-General of the State (by joint resolution
duly adopted, after being read one time in each house on different
days, and bj^ a two-third's vote of members voting on the same), when-
ever the interests of the State, or the proper administration of the
law, demand such suspension.
§114. (b.) Governor may suspend. Whenever the Governor has trust-
Acts of 1878 worthy information that the State Treasurer or Comptroller-General
-9, p. 30. ^ g j nsanej or h ag absconded, or grossly neglects his duties, or is guilty
of conduct plainly violative of his duties, or demeans himself in office
to the hazard of the public funds or credit of the State, it shall be the
duty of the Governor to suspend said Treasurer, or Comptroller-General,
as the case may be, and report his reasons for such suspension to the
General Assembly. Said suspension shall continue until the General
Assembly shall otherwise direct.
§114. (c.) Officers pro tern. Whenever the State Treasurer or Comp-
Acts of 1878 troller-General shall be suspended, as provided in the two preceding
-9, p. 30. g ec tions, the Governor shall appoint some suitable person to discharge
the duties of the office of Treasurer, or Comptroller-General, as the
case may be, until the suspended official is restored by law, or until
his successor is elected and qualified. And the person so appointed
shall take the same oath and give the same bond required by law of
the regular incumbent.
General Note on Article III. — Decisions relating to similar office in other States:
5 Wend., 149, 490; 7 Cal., 136.
PART I.— TITLE III.— CHAPTER V.
37
Article 1.— State Librarian.
CHi^PTER V.
OTHER OFFICERS CONNECTED WITH THE EXECUTIVE DEPARTMENT.
Article 1. — State Librarian.
Article 2. — Governor 's Messenger and State House Guard.
ARTICLE I.
STATE LIBRARIAN.
Section.
115. Librarian's bond.
116. He must keep the State library.
117. He must preserve the books, etc.
118. He shall distribute the laws, etc.
119. He must keep a catalogue of books.
r r>-J*/*f
Section.
120. He must take and file receipts, etc.
121. He must exchange for reports, etc.
122. His office is subject, etc.
123. He must deliver contents of office.
§115. (106.) (111.) Must give bond. The Librarian must give a bond Act of 1847,
in the sum of two thousand dollars, with good security, payable to the ' p *
Governor and his successors in office, conditioned for the faithful per-
formance of his duty as State Librarian.
§116. (107.) (112.) Must keep library. The library belonging to this Act of 1851-
State, with such additions as may be hereafter made from any quarter, ' p '
together with all copies of the laws, journals, or other books published
or purchased by the State, shall be kept in appropriate apartments at
the Capitol building, designated by the Governor, under such rules and
regulations as he may from, time to time prescribe.
§117. (108.) (113.) For inspection. It is his business to preserve,
keep in order, and protect said library, to. keep the same open for the in-
spection of all citizens of the State, and to discharge such other duties
in connection with the library as may be required of him by law or the
Governor of the State.
§118. (109.) (114.) Distribute laws, etc. The distribution of the laws (a) Acts of
and journals, reports of the Supreme Court decisions, laws of the Uni-J^^JpQ
ted States, and all other books required to be distributed to the several p. 48.
counties (of the State) or to be sent to other States, shall be made by
the Librarian, under the direction of the Governor, in pursuance of the
provisions of the law in respect thereto. [He shall distribute by mail
the decisions of the Supreme Court, as follows : one copy of each to the
Judges of the Supreme and Superior Courts, the Clerk of the Supreme
Court, the Clerks of the Superior Courts, and the Ordinaries of this
State, the expense for distributing which shall be paid out of money in
the treasury not otherwise appropriated. The remaining copies he
shall keep in the State library for use, and for exchange, as is required
by section 121 of this Code.] (a.)
§119. (110.) (115.) Keep a catalogue. He shall make out and keep on
hand a catalogue of all the books in the library — to be amended without
unnecessary delay from time to time, as he may obtain new books or
dispose of old ones — which shall be printed and kept in his office in
two or more conspicuous places.
§120. (111.) (116.) Must take and file receipts. It is his duty to receive
from the State Printer the laws and journals, and when distribution is
made to the various counties, to take from the Clerks of Courts, or other
distributees, their receipts therefor; likewise all other books required
to be distributed. He must receive and take receipt on the distribu-
tion, and keep in his office a file of such receipts.
38 PART I.— TITLE III.— CHAPTER V.
Article 2 — Governor's Messenger and State House Guard.
§121. (112.) (117.) Exchange reports with other States. He must corres-
pond with the proper authorities <5f other States who publish the
reports of their highest appellate tribunal, with a view to exchange
theirs for our Supreme Court reports.
§122. (113.) (118.) His office subject to Governor's supervision. His office
is under the general supervision of the Governor, who may at any time
appoint a competent person to*examine into and report its condition to
him.
§123. (114.) (119.) Must deliver contents of office to successor. If the
Librarian resign, or be removed, he must, within ten days thereafter,
deliver the books, papers, and other contents of his office to his succes-
sor, taking his receipt therefor, which must be filed and recorded in
the Executive office; and if there is any deficiency in the books re-
ceived by him, or other damage done, the Governor shall have suit
brought on his bond.
ARTICLE II.
governor's messenger and state house guard.
Section.
124. Governor's messenger.
125. His duties.
126. Appointment of special messenger.
Section.
127. Capitol guards — their duties.
128. Number may be changed.
§124. (115.) (120.) May appoint messenger. The Governor may, in his
discretion, as the exigency may require, appoint a messenger to the
Executive department, or have that duty performed by some other
employee about the State House, engaged by him under the general
authority granted to him, and when so performed it must be done
without additional compensation.
§125. (116.) (121.) Duties of messenger. When there is a messenger,
he shall perform such duties for the Executive office, the other officers
in the State House, and such other service connected with the State
business at the Capitol as the Governor shall prescribe, and be governed
by such rules and regulations as he may adopt.
§126. (117.) (122.) If there is no messenger. Where there is no messen-
ger, the Governor may, if occasion should require, employ some person
to perform any special service, for a reasonable compensation, such as
is the duty of the messenger to perform, but which cannot be performed
by the person acting as such.
§127. (118.) (123.) Guard of Capitol. The Governor shall appoint a
guard for the Capital buildings, including the captain of the guard,
whom he shall designate as such, whose business it shall be to remain
in said buildings from sundown until sunrise of the next day, every
night in the year, and on Sundays and holidays, to keep watch over
the same and protect them from fire or intruders.
§128. (119.) (124.) Governor's power over guard. The Governor has
power to keep the number of said guard full, when lessened by provi-
dential or other cause, and adopt such rules and regulations in regard
to them as in his judgment the public service may demand.
PART L— TITLE III.— CHAPTER VI.
:;d
Article 1.— Of Eligibility, Qualifications, etc.
CHAPTER VI.
GENERAL REGULATIONS AS TO ALL OFFICERS AND OFFICES.
Article 1. — Of Eligibility, Qualifications and Commissions.
Article 2.— Official Oaths.
Article 3. — Official Bonds a/nd Herein of Discharging Sureties.
Article 4. — Of Delivery of Books, etc., to Successor.
ARTICLE I.
OF ELIGIBILITY
QUALIFICATIONS AND COMMISSIONS OF OFFICERS AND
VACATION OF OFFICES.
Section.
129. Persons ineligible to civil office.
130. When ineligible, the next highest.
131. Persons elected, failing to qualify.
132. Residence, seal, and term office.
133. Commissions under Great Seal.
Section.
134. Commissions under Executive seal.
135. When civil offices are vacated.
136. Vacancy in Executive office.
137. Resignations sent to the Governor.
138. Term of officers.
§129. (120.) (125.) Persons ineligible to office. The following persons Act of 1787,
are held and deemed ineligible to hold any civil office in this State, ^.c?' Ii823
and the existence of either the following state of facts is a sufficient c. p. 289.
reason for vacating any office held by such person , but the acts of such ^[st of
person, while holding a commission, are valid as the acts of an officer 1877, Art. 2.
de facto, viz :
One's right to, when colorably in, tested by quo warranto: 7 Ga v 473. Sheriff giving
no bond, yet is a good officer de facto: 9 Ga., 314. De facto officer presumed right: 5
Ga., 239. Acts of a de facto deputy sheriff held right: 11 Ga., 423. Acting notori-
ously as a public officer is prima facie evidence that he is such: 14 Ga., 185; 21 Ga.,
217. One acting by color of appointment: 20 Ga., 746. Notary Public de facto : 44
Ga., 454. When county commissioners are officers de facto: 52 234. Town officers:
63 Ga., 527.
Officer de facto: See elaborate note: 19 Am. D., 63; 9 Am. R., 434, n; 21 Am. D.,
217. Rules regarding, embrace judicial, executive and ministerial officers: 19 Am. D.,
66, 11. Salary of, paid to, when no defense to action for, by the officer de jure : 19 Am.
D., 68, n; see, also: 27 Am. R., 171; 24/715. Bond is binding on his sureties: 14 Am.
D., 84. Acts of, are valid as respects third persons: 7 Am. D., 98; 6/62; 9 Am. R.,
409; 23/374; 4/89; 20/335; 21/479. Punishable for malfeasance : 9 C. L. J., 98. Proof
of: Abbott's Tr. Ev., 193, 196.
1. Persons who are not citizens of this State, nor of the age of twenty-
one years or upwards.
2. All holders or receivers of public money of this State, or any
county thereof, who have refused when called upon, or failed after reas-
onable opportunity, to account for and pay over the same to the proper
officer.
3. Any person convicted and sentenced finally for any felony, under
the laws of this or any other State, involving moral turpitude, the
offense being also a felony in this, unless restored by a pardon from the
proper Executive, under the Great Seal of the State, to all the rights
of citizenship.
4. Persons holding any office of profit or trust under the Government
of the United States, (other than that of postmaster,) or of either of the
several States, or of an}^ foreign State.
5. Persons of unsound mind, and those who, from advanced age or
bodily infirmity, are unfit to discharge the duties of the office to which
they are chosen or appointed.
40 PART L— TITLE III.— CHAPTER VI.
Article 1.— Eligibility, Qualifications, etc.
6. Those who have not been inhabitants of the State, county, district
or circuit for the period required by the Constitution and laws of this
State.
[7. No person shall be eligible to hold any county office in any county
(aj_ Acts of of this State unless he shall have been bona fide a citizen of the county
i i% p. 40. j n w j 1 i c ] 1 h e gi ia ij De elected at least twelve months prior to his said
election.] (a.)
8. All persons from any cause constitutionally disqualified. All
officers are eligible to re-election and re-appointment, and to hold
other offices, unless expressly declared to the contrary by the Consti-
tution or laws.
Section cited: 58 Ga., 517.
Eligibility: 15 Am. D., 322; 9 Am. R., 489; 24/66. See notes to provisions in Con-
stitution.
§130. [Repealed, see Acts of 1871-2, p. 19.]
§131. (122.) (127.) Falling to obtain commission. Persons who, after
an election, fail to comply with all the prerequisites of the law in order
to obtain commissions or certificates to discharge the duties of the
office, are ineligible to re-election at the election held, by reason of
such failure, for the same office.
§132. (123.) (128.) Officers of this State must reside therein, and hold until
Acts of 1851 successor is qualified. All officers of this State must reside therein, at
-2, p. 77. suc h places as are designated by law, and discharge the duties of their
office until their successors are commissioned and qualified ; and all
officers whose certificate of records or other papers are admissible in
evidence in any Court in this State must have and keep an official
seal.
Section cited: 58 Ga., 517.
§133. (124.) (129.) What officers must be commissioned under the Great
Seal. The following officers must be commissioned, with the Great
Seal of the State annexed thereto, signed by the Governor, and coun-
tersigned by the Secretary of State, viz : Senators and Representa-
tives in Congress, Judges of the Supreme and Superior Courts, Attorney
and Solicitors-General, Reporter of the Supreme Court, Secretary of
State, Treasurer and Comptroller-General, and all military officers of the
grade of General, either of division or brigade. Those of all Federal or
Judicial officers above enumerated must be on parchment.
§134. (125.) (130.) What officers commissioned under Executive Seal. All
other civil officers of the State or county shall be commissioned under
the seal of the Executive department, signed by the Governor, and
countersigned by one of his secretaries, except constables,. whose election
shall be certified by the Ordinary ; and such certificate shall operate as
their commission. All officers of the militia of volunteer companies,
battalions or regiments, regularly incorporated (of the grade of lieu-
tenant or higher,) shall have commissions under the seal of the Exec-
utive department.
The Governor's commission is only prima facie evidence of title: 8 Ga., 360.
§135. (126.) (131.) Offices, how vacated. All offices in the State are
vacated —
1. By the death of the incumbent.
2. By resignation, when accepted.
3. By decision of a competent tribunal declaring the office vacant.
4. By voluntary act or misfortune of the incumbent, whereby he is
placed in either of the conditions specified of ineligibity to office, which
shall operate from the time the fact is ascertained and declared by the
proper tribunal.
PART L— TITLE III.— CHAPTER VI. 41
Article 1. — Eligibility, Qualifications, etc.
5. By the incumbent ceasing to be a resident of the State, or of the
county, circuit or district for which he was elected. In the first case the
office shall be vacated immediately ; in the latter cases, from the time
the fact is judiciously ascertained.
6. By failing to apply for and obtain commissions or certificates, or
by failing to qualify or give bond, or both, within the time prescribed
by the laws and Constitution.
A valid statutory bond by a Tax Collector: 11 Ga., 207. Bond not given in time, yet
valid as a Common Law bond : 1 Ga., 574; 9/314. Official Common Law bonds enforced
as at Common Law: 3 Ga., 499. Office not forfeited by not giving bond and making
oath in time: 44 Ga., 501. Sheriff failing to give other security cannot exercise the
office: 46 Ga., 635.
Vacancy: 9 Am. D., 50; 17/321; 21/551; 27 Am. R., 206; 33/659; 4 C. L. J., 156.
7. By abandoning the office and ceasing to perform its duties, or
either.
§136. (127.) (132.) Resignation of the Governor. The resignation of
the Governor must be transmitted by him to the General Assembly, if
in session ; if not in session, to the Secretary of State, who must on the
same day notify the President of the Senate. If the office becomes
vacant by death, or any other cause, when the General Assembly is not
in session, the Secretary of State must inform the President of the
Senate. In either case the President of the Senate, when informed,
shall, within ten days, repair to the Capital and take the oath of office
before any Judge of the Supreme or Judge of the Superior Court, and
the General. Assembly, if in session ; which fact shall be entered on the
minutes of the Executive department. If he does not so appear in said
time, he shall be considered as having resigned, and the Secretary of
State shall then, or in case there is no President of the Senate, inform
the Speaker of the House of Representatives, and the proceedings shall
be the same.
§137. (128.) (133.) What officers report their resignation to the Governor.
The resignation of Senators and Representatives in Congress, and
members of the General Assembly, and of all officers whose commissions
issue from the office of Secretary of State or the Executive department,
and whose places may be supplied by Executive appointment, shall be
made to the Governor.
§138. Term of officers to fill vacancies. [In all cases where the office of (a) A cts of
Governor, Senators or Representatives, Judge of the Supreme Court, ' ' p '
Judge of the Superior Court, Attorney-General, Solicitor-General, Sec-
retary of State, Treasurer, Comptroller-General, Surveyor-General,
Ordinary, Sheriff, Clerk of the Superior Court, Tax Collector, Tax Re-
ceivers, County Treasurer, County Surveyor or Coroner, or either of
them, shall become vacant by resignation, death, or the removal of the
officer before the expiration of his term, the successor to said officer
shall be elected or appointed only for the remainder of said unexpired
term.] (a.)
General Note on Office and Officers. — Acts of public, exceeding their authority
are void: 7 Am. D., 690. Contracts of— See note, $2212; Whart. Neg., $287. Official
character, general reputation as evidence of: 24 Am. D., 113; 11 Am. R., 373. Dam-
ages for intrusion into public office; measure of : Sedg. Dam., 711. Fees — only enti-
tled to such as are expressly given by law: 10 C. L. J., 16, 299. A public ministerial
officer receiving a salary is liable to individuals for injuries sustained by them from
his official negligence: 1 Add. Tort., $30; Whart. Neg., $285; 2 Thomp. Neg., 812; 11
Wall, 136; Shear & Red. Neg., 196. Not liable when acting gratuitously and in
good faith: 2 Thomp. Neg., 807. Special damages necessary to sustain suit: Whart.
Neg., $286, a. As to damages, see, also: Sedg. Dam., 632. Not usually liable for
neglect of official subordinates, but otherwise as to private servants: Whart. Neg,,
$288. For rule as to judicial officers, see general note following $209. Office, power
of Legislature to abolish, etc. : 25 Am. D., 677; R. M. Charl., 397; Cooley Const. Lim.,
276; 19 Wal., 526; 3 C. L. J., 617; 1 Am. D., 422; 6/754; 7/87, n, 90; 7/30*2. Presump-
tion of performance of duty, when arises: 16 Am. D., 107, 20, 281. — See, also, note
£3752. Removal: 7 Am. R., 686; 13/131; 24/154; by Governor— See note after $78.
42
PART I.— TITLE III.— CHAPTER VI.
Article 2. — Official oaths.
Resignation cannot be withdrawn — when: 13 Am. R., 384. Officer de jure, when
entitled to salary : 27 Am. R., 750, and n, 754; 5/52; 9/131. Officer de facto, payment
of salary to, by county: 27 Am. R., 171; 19 Am. D., 68, n. Sale of, contracts for
illegal: 1 Add. Contr., |266.— See, also, notes to "mandamus." Abb. Tr. Ev., 193-201.
ARTICLE II.
OFFICIAL OATHS.
Section.
139. Additional oath of public officers.
140. Oath must accompany dediinus.
141. Who may qualify officers.
142. Official oatns must be filed.
143. Where to be filed.
Section.
144. Indorsement of filing.
145. Oaths of deputies to be filed.
146. Failing to take and file oath.
147. When acts are valid without oaths.
§139. (129.) (134.) Additional oath of public officers. All public officers,
besides the oath of office and the oath prescribed by the Constitution
(if any), shall swear that he is not the holder of any public money due
this State, unaccounted for; that he is not the holder of any office of
trust under the Government of the Unit >d States (except postmaster)
nor either of the several States, nor of any foreign State, and is other-
wise qualified to hold said office according to the Constitution and laws
of Georgia, and will support the Constitution of the United States and
of this State ; and, if elected by any circuit or 'district, that he was a
resident thereof for the time required by the Constitution and laws
(stating the time.)
§140. (130.) (135.) Form of oath to he sent with dedimus. The form of said
oath, as well as the oath of office, to be taken and subscribed, must be
forwarded with the dedimus potestatem, and be taken and subscribed at
the time of receiving the commissions before the officer to whom the
same is directed, and in conformity to the directions.
§141. (131.) (136.) Official oaths, before whom taken. When not otherwise
provided by law, and not directed in the dedimus potestatem, the oaths of
office may be taken before any officer authorized by law to administer
an oath. Such oaths must be written out and subscribed by the per-
son taking them, and accompanied by the certificate of such officer
specifying the day and year when taken.
§142. (132.) (137.) Official oaths must be filed in Executive office, when. Such.
oaths, when taken by an officer whose general duties are not confined
to any one county, (unless otherwise specially provided,) must be filed
with the certificate required by the preceding section in the Executive
office ; and when taken by an officer whose duties are confined to one
county, as provided in the next section.
§143. (133.) (138.) Official oaths filed in Ordinary's office, when. When
taken by the Ordinaries and the Clerks of the Superior Courts they
must be filed in the office of the Clerk of the Superior Court, and also
entered on the minutes of their respective Courts. When taken by
Sheriffs, they must be likewise filed in the office of the Ordinary, and
must be entered on the minutes of the Superior Courts; and when
taken by coroners, tax collectors or receivers, county treasurer, Jus-
tices of the Peace or constables, or any other county officer, they must
be filed in the office of the Ordinary, who must enter them on the min-
utes of his Court.
§144. (134.) (139.) Official oaths, time of filing. The officer in whose office
such oaths are filed must indorse thereon the day and year of filing.
§145. (135.) (140.) Oath of deputies. All deputies, before proceeding to
act, must take the same oaths as their principals take, which must be filed
in and entered on the minutes of the same office, and with the same in-
dorsement thereon, but these provisions do not apply to any deputy
who may be employed in particular cases only.
Constable made a de facto deputy sheriff: 61 Gra., 272.
PART I.— TITLE III.— CHAPTER VI. 43
Article 3.— Official bonds and herein of discharging sureties, etc.
§146. (136.) (141.) Penalty for failure to file official oath. If any officer or
puty, required by law to take and file such oaths, enters upon the
Lties of his office without first taking and filing the same in the proper
Ice, he is guilty of a misdemeanor, and, on conviction, must be fined
•t less than two hundred dollars.
§147. (137.) (142.) Official acts of officers valid, when. The official acts of an
icer are not the less valid for his omission to take and file the oath,
dess in cases where so specially declared.
A de facto deputy sheriff: 61 Ga., 272.
ARTICLE III.
FICIAL BONDS AND HEREIN OF DISCHARGING SURETIES AND REQUIRING
ADDITIONAL SURETIES.
ECTION.
148. The payee and condition of honds.
149. Bonds must accompany dedimus.
150. Approval of official bonds.
151. Number and qualification of sureties.
152. Officers no surety for each other.
153. May be signed by attorney in fact.
154. When bonds must be filed...
155. Certificate of failure to file bond.
156. Acting before filing bond.
157. Indorsement of filing.
158. Notice of failure to file bond.
159. Penalty for failure.
Section.
160. Obligations of official bonds.
161. Approval, filing and record of bonds.
162. Giving bonds to be certified.
163. Deputies' bonds.
164. Principal or deputy may be sued.
165. Bond, when discharged.
166. Officers liable above penalty of bond.
167. Validity of bonds.
168. Damages in suits on bonds.
169. Future official oaths and bonds.
170. How sureties may be discharged.
171. Officer failing to give new bond.
§148. (138.) (143.) Official bonds, to whom payable. The bonds of all
.blic officers required by law to give bond, unless otherwise provided,
~Y — >?^
ccessor in office, with such sureties as the approving Court or officer ^*~ Vr » «^^i <i *
list be made payable to the Governor of the State of Georgia and
ied, /? y
icer £*~ 'fr m * ** & k +
satisfied is sufficient, and conditioned in all cases in which a different ^^^ jf^^ /^
ndition is not prescribed, faithfully to discharge the duties of such jb/
ice during the time he continues therein or discharges any of the / /V^«^y ? '^ s ""'5 ? ,
ties thereof.
Bond passes to successor without assignment: 1 Ga., 574; 15/423. Payable rightfully,
the Governor: 2 Ga., 371. Public officers defined: 33 Ga., 332.
§149. (139.) (144.) Official bond, sent with dedimm. Official bonds of
officers who are entitled to commissions from the Governor, and who
3 required to give bonds, must be prepared and furnished by the Ex-
ative department at the time of forwarding the dedimus potestatem.
§150. (140.) (145.) Official bonds must be approved, The approval of
. official bonds shall be in writing, indorsed on the bond, and should
ow the day and year on which the same were approved, and shall not
filed until thus approved.
§151. (141.) (146.) Sureties on official bonds. Such bonds shall not be
proved by the approving officers unless they have at least two good
d solvent sureties [who shall be worth the amount of said bond, over
d above the homestead, in case of county officers,] (a) and not more (a) Act of yj^j ,^tf~
an [TOlf^J (b) all of whom must be permanent residents of the State, 1373. Feb ''
d two also of the county, and freeholders thereof. When said approv-
g officers do not of their own knowledge know that a surety is worth 1863-64, p.
ough to enable them to accept him, they shall not take him unless 124 -
swears to his means, and it is satisfactory, of which swearing they
all make a minute on the bond.
§152. Officers shall not be surety for each other. [No county officer shall fiS^S^
received as security on the bond of any county officer,] (a) and no 1873.
;orncy at law shall be received as a security on any Sheriff's or other p C J| 1876,
mty officer's bond in the State.
44 PART I.— TITLE III.— CHAPTER VI.
Article 3. — Official bonds and herein of discharging sureties, etc.
§153. (142.) (147.) Attorney in fact may execute official bond. When a:
official bond is signed by an attorney in fact, the power of attorne;
must be attested by the Ordinary and filed and recorded as the bond ii
§154. (143.) (148.) Within what time official bonds must be filed. Th
official bonds of public officers required by law to be filed in the offic
of Comptroller, Secretary of State, or Executive department, must b
filed therein within forty days after the election or appointment I
such officer ; when in the office of the Clerk of the Superior Court c
Ordinary, within thirty days therefrom; in all other cases within twent
days therefrom.*
The office is not avoided because bond not filed within time : 44 Ga., 501-4.
^155. (144.) (149.) Failure to file official bond. When any officer (
whom bond is required fails to make and file the same as prescribed i
the preceding section, it is the duty of the Court, or officer in whos
office it is required to be filed, at once to certify such failure to the aj
pointing power, and to the power whose duty it may be to order a
election.
§156. (145.) (150.) Acting before filing bond. If any public officer r<
quired by law to give bond performs any official act before his bond
approved and filed as required, he is guilty of a misdemeanor, and, o
conviction, must be fined not less than five hundred dollars.
§157. (146.) (151.) Indorsement on official bond. Every officer i
whose office the official bond of any public officer is filed must indors
on such bond the day and year when the same was filed, and sign hi
name to such indorsement.
§158. (147.) (152.) Notice of failure to file bond. If any public offic*
required by law to give bond fails to file the same within the time hen
inbefore prescribed, in the proper office, notice of such failure must t
given by the officer in whose office such bond is required to be filed b
or during the two first days of the session of the Superior Court he]
in the county in which -the officer so failing resides, next after sue
failure, to the Attorney or Solictor-general of the Circuit.
§159. (148.) (153.) Penalty for failure to mark-file and give notice. An
officer whose duty it is to mark-file the bond and to give the sever?
notices required in this article, and failing to do so, without good an
sufficient excuse therefor, shall, on information rendered and citatio
to appear before the Superior Court of the county of his residence, X
fined as for a contempt (in the discretion of the Court).
§160. (149.) (154.) Official bonds obligatory. Every official bond ex
cuted under this Code is obligatory on the principal and sureti<
thereon —
1. For any breach of the condition during the time the officer coi-
tinues in office or discharges any of the duties thereof.
2. For any breach of the condition by a deputy, although not e:
pressed, unless otherwise declared by law.
24 Am, D., 256.
3. For the faithful discharge of any duties which may be required
such officer by any law passed subsequently to the execution of sue
bond, although no such condition is expressed therein.
2 Woods, 92.
4. For the use and benefit of every person who is injured, as well \\
any wrongful act committed under color of his office as by his failu:
to perform, or by the improper or neglectful performance of those d
ties imposed by law.
General Note. — Bonds, binding beyond what period: 19 Am. D., 748; 29/224, 23;
6/65. Bonds not required by statute, liability on : 14 Am. D., 105. Application
'•'The proviso of this section repealed. See Acts of 1875, p. 16.
PART L— TITLE III— CHAPTER VI. 45
Article 3.— Official bonds and herein of discharging sureties, etc.
payments, doctrine of, on official bonds: Hunger on App. Pay., 174. As to liability
)f sureties, see generally : Brandt on Suretyship, #442; 13 Am. D., 461 ; 15/170, n ; 1 Am.
R 199; 7/519 n, 521; 20/266; 18/39; 11 How., 22; 19/73; 9 Wal, 83; 10/395; 5 Pet,
392, 373; 7/435; 5 C. L. J., 170, 227, 414, 478; 8/427 ; 10/137, 378, 434, 496.
§161. (150.) (155.) Official bonds by whom approved and recorded. The
official bonds of the Clerks of the Superior Court, of Sheriffs, coroners,
3junty surveyors, county treasurers, tax collectors and receivers, given
for county taxes, must be approved by the Ordinary and filed in his
jffice, and by him recorded. The bonds of tax collectors arid receivers
for State taxes, after being likewise approved, must be recorded by the
Ordinary, and the original bond must be by him transmitted to the
Oovernor (for deposit in the Comptroller General's office).
§162. (151.) (156.) Ordinary must certify to the Governor. Such Ordi-
nary must sign a certificate to the Governor, stating that the Clerks of
the Superior Courts, the Sheriffs, coroners and county surveyors, have
taken the oaths and given the bonds sent from the Executive depart-
ment, together with a statement of the dates, amounts, and names of
the sureties of each, and that they have delivered to them their com-
missions ; which shall be attested by the Clerk of said Court, and by
him immediately transmitted to the Governor.
§163. (152.) (157.) Bond of deputy, to whom payable.. When deputies
give a bond, they must be payable to their principals, with surety con-
ditioned as theirs are, for their conduct as deputies, for the same
amounts, and must be recorded in the same office and in the same
manner as the bonds of the principals.
Surety on deputy's bond can make any defense that principal could have made: 13
Ga., 389.
§164. (153.) (158.) Deputy suable same as principal. It shall be at
ithe option of any person who claims damages of any principal officer
or the act of his deputy, to sue said deputy's bond instead of his, in
the same manner as the principal's bond may be sued.
When not, as to deputy sheriff: 59 Ga., 180.
Whart, Neg. , $295. '
§165. (154.) (159.) Bond, when discharged. Such bonds are not dis- Act of im^
3harged by a single recovery, but proceedings may be had from time ' p "
o time, until the whole penalty is exhausted against the officer and
|iis sureties, or either, and said bonds are joint or several, whether so
!*et forth or not.
There can be only one recovery on a Common Law bond: 3 Ga., 499. When the
Penalty of Sheriff's bond is exhausted: 8 Ga., 570. Sheriff not required to follow
he requirements of an unconstitutional Act, as defense to a suit on his bond: 12
M., 36.
§166. (155.) (160.) Officer liable, though penalty exhausted. When the
penalty is exhausted, the officer himself shall still be liable, and upon
;he same measure of damages as upon his bond, and he is likewise
liable for any damage he may do in undertaking to discharge the
luties of an office without having given the necessary bond, or, having
;iven one, it is invalid, in whole or in part.
§167. (156.) (161.) Bonds valid, though not in conformity to law. When-
ever any officer, required by law to give an official bond, acts under a
)ond which is not in the penalty payable and conditioned, nor approved
md filed as prescribed by law, such bond is not void, but stands in the
)lace of the official bond, subject, on its condition being broken, to
41 the remedies, including the several recoveries which the persons
aggrieved might have maintained on the official bond.
Official bond not conforming to statute requiring it: 1 Ga., 574; 3/499. When only
nforceable according to Common Law rules: 3 Ga., 499. Section cited and construed :
6Ga.,292.
4(5 PART I.— TITLE III.— CHAPTER VI.
Article 4. — Of delivery of books to successors.
§168. (157.) (162.) Measure of damages. The measure of damages
13675. upon all official bonds for the misconduct of the officer, unless other-
wise specially enacted, shall be the amount of injury actually sustained,
including the reasonable expenses of the suit to the plaintiff, besides
the costs of court; but in all cases when little or no damage is actually
sustained, and the officer has not acted in good faith, the jury may
find for the plaintiff an amount, as smart money, which, taking all the
circumstances together, shall not be excessive nor oppressive.
Measure of damages is the injury sustained: 6 Ga., 244. Is the amount of the execu-
tion: 7 Ga., 445. But see 17 Ga., 521-624. Sheriff's bond only recoverable on, to the
extent of the party's damage: 17 Ga., 522. Constable's bond — the measure of dam-
ages on is the injury sustained: 17 Ga., 624-632. Suit on Sheriff's bond: 34 Ga., 177.
Penalty only recoverable from the security on the bond: 59 Ga., 205.
See notes on bonds of Sheriff and other officers.
§169. (158.) (163.) This and the preceding Article apply to all official'*
bonds. All the provisions of this and the preceding Article apply to
the oaths of office and the official bonds of all public officers of this]
State, whose office may be established hereafter, unless the contrary is i
expressly provided.
§170. (169.) (164.) Sureties, how relieved. When the surety to any!
Act of 1845, bond, given by any officer for the performance of any public duty, shall j
c. p. 1036. give notice, in writing, to the Governor, of his desire to be- relieved!
from future liability, for good cause therein stated and sworn to, (of
which the Governor shall be the judge,) or any such surety shall, ini
the opinion of the Governor, formed upon satisfactory evidence, become!
insufficient, it shall be his duty to require of such officer a new bond|
and surety.
Discharged surety released from future liability ; the substituted one liable for the
future and the past liability: 1 Ga., 84. Decree against guardian on his bond is prima
facie evidence against his security: 1 Ga., 356. Out-going Sheriff's surety on bond
liable only for Sneriif's acts while in office: 2 Ga., 248.
§171. (160.) (165.) Officer failing to give new bond when required. If
any officer shall fail to comply with such requisition within ten days
from the date he is served personally with a copy of the Executive
order containing such requisition, he is, by such failure, removed from
office and a vacancy declared.
ARTICLE IV.
OF DELIVERY OF BOOKS TO SUCCESSORS.
Section.
172. Outgoing officers must deliver books.
173. Persons having office property.
174. Persons refusing to deliver, etc.
Section.
175. May be imprisoned.
176. Books, etc., delivered to successor.
177. Penalty for failure.
^§172. (161.) (166.) Officer must deliver books, etc., to successor. When
ny office is vacated, it is the duty of the incumbent, on demand made,
to deliver all books, papers and other property appertaining to the
office, to his qualified successor.
§173. (162.) (167.) Other persons having office property. If a vacancy
occurs by death, or the incumbent is not to be found at the time of
demand made, it is the duty of any person having possession or controlj
of such office property, or any part thereof, to deliver it up, and the!
rights and remedies are the same against such person as against the|
deceased officer, if living or to be found.
Courts will not go behind new officer's commission : 44 Ga., 501.
§174. (163.) (168.) Proceedings against person in possession of, and
refusing to deliver, office and contents. If any person neglects or refuses so
PART I.— TITLE III.— CHAPTER VI. 47
Article 4.— Of delivery of books to successors.
to do, after demand made, the suecessor shall make complaint to the Acts of 1853
Ordinary of the county, or to the Judge of the Superior Court of the" 54 ' p
( Circuit in which the person refusing resides, or, if neither can be had,
the judge of the Superior Court of an adjoining Circuit, and if such
officer is satisfied, from the oath of complaint or otherwise, that such
are withheld, he must grant an order requiring the person so refusing
to show cause before him, on a day and at a place named in such order,
why he should not be compelled to deliver over the same.
§175. (164.) (169.) Persons failing to comply with the order 7 koto punished.
At the time so appointed, or at any other time to which the matter §4474.
may be adjourned, a copy of such order having been personally served
on the person so refusing, such officer must proceed to inquire into the
circumstances, and, if it appears that such books and papers are with-
held, he must order the same delivered up instanter to said successor,
and on failing to comply with such order, he shall issue a warrant,
directed to any officer of said county, or of the adjoining county, author-
ized to make the arrest, to arrest said officer and commit him to jail,
there to remain until he complies with said order, or is otherwise dis-
charged by course of law. At the same time, in the same way, he shall,
command said officer to search such places for them as may be desig-
nated in such warrant, and to seize and bring them before him or some
other officer authorized to preside, and being so brought and appearing
to belong to said office, he shall cause them to be delivered to the
successor. The payment of costs are in the discretion of the Court,
^aid proceedings do not interfere with the provisions of the Penal
(Vxle on this subject.
§176. (165.) (170.) Officers retiring must deliver books to successor. All
judicial or ministerial officers or State's attorneys, who by law are enti-
led to receive from the State any books, pamphlets or other documents,
■ipon retiring from office must deliver them over to their successors,
md from one successor to another.
§177. (166.) (171.) Penalty for failure to deliver books to successor. On
ailure to deliver such books, after demand made by incoming officer, he
s liable for three times the first cost thereof, to be retained out of his
Hilary, if a salaried officer, and if not a salaried officer, or, being one, it
s omitted to be retained, the officer so detaining is subject to suit and
ecovery (in a Court having jurisdiction) by the successor in the name
f the State ior his use.
.48
PART L— TITLE IV.— CHAPTER I.
Of the General Assembly.
TITLE IV.
LEGISLATIVE DEPARTMENT.
CHAPTER I.
OF THE GENERAL ASSEMBLY.
Section,
178. Meeting of Legislature.
179. Length of sessions.
180. How organized.
181. Oath of members.
182. President and Speaker.
183. Elections by General Assembly.
184. Door-keepers and messengers.
185. Special messengers.
Section.
186 Joint Finance Committee.
187. Duty of Secretary and Clerk.
188. Engrossed copies of laws.
189. Pay of President, Speaker, etc.
190. Pay of sick members.
191. Amount due deceased members.
192. Accounts of officers and members.
193. Appropriations by resolution.
Const, of
1877, Art. 3
Sec, 4, par.
3.
Const, of
§178. (172.) Legislature meets, when. The first meeting of the General
Assembly under the Constitution of 1877, was on the first Wednesday
in November, 1878, and the constitution provides that it shall meet
biennially thereafter, on the same day, until the day shall be changed
by law. The hour of meeting shall be ten o'clock in the forenoon, and
the place at the Capitol.
§179. (168.) (173.) Length of session. Each session shall not continue
sec 7 '4 Vr par l° n S er than forty days, unless otherwise ordered by a vote of two-thirds
6. of each branch of the General Assembly.
§180. (169.) (174.) General Assembly, how organized. Each branch shall
be organized by the Clerk and Secretary thereof respectively, who are,
ex officio, presiding officers until such are elected. No question shall
be entertained by them but one relating to the organization, and in
deciding such questions they are to be governed, as far as practicable,
by the standing rules of the house over which they preside. In the
absence of such officer, their assistants may officiate. In the absence
of both, the body may appoint a chairman whose powers and duties are
the same.
§181. (170.) (175.) Oath of members. The oaths of office may be admin-
istered to the members of the General Assembly by any J,udge of the
Supreme or Superior Courts, to be procured by the person organizing
each branch.
§182. (171.) (176.) President of the Senate and Speaker of the House, how
elected. The President of the Senate and Speaker of the House are
elected by their respective bodies viva voce, and a majority of votes in
necessary to a choice. In like manner the Senate must elect a Presi
dent pro tern., and the House a Speaker pro tern., whose powers and du-
ties, while presiding, or in the absence of said officers, are the same.
§183. (172.) (177.) Elections by the General Assembly. All elections
[except for United States Senator] (a) by the General Assembly are to
be conducted as follows :
1. The elections shall be viva voce, and the vote shall appear on the
const, of journal of the House of Representatives. When the Senate and House
s 877 'io rt 3 ' °^ R e P resen tatives unite for the purpose of elections, they shall meetj
in the Representative Hall, and the President of the Senate shall, in
such cases, preside and declare the result.
2. The votes are to be given for but one election at the same time.?
and a majority of the whole number of votes cast is necessary to a|
choice, and all blanks are to be counted as votes.
3. The Senate and House of Representatives shall meet in joint sefl-j
sion in the hall of the House of Representatives on the first Monday
(a) Acts of
Congress,
25th July,
1866.
PART I.— TITLE IV.— CHAPTER I. 4<)
Of the General Assembly.
$f every session at ten o'clock a. m., for the purpose of. electing such Acts of isao
officers of said State as are now or may hereafter be required, to be n;™'" ,H
elected by the General Assembly. Said joint session shall continue
in morning and afternoon sessions from day to day until all of said
officers are elected.
4. The first business in order for said joint session shall be the elec- Act of iswi
tion of Judges of the Supreme Court, and after that, Judges and Solic- i79, pp '
itors of the various Circuits. Before the election of Judges and Solici-
tors shall be commenced the Speaker of the House of Representatives
shall prepare slips of paper of the same size, on which he shall write
the names of the various Circuits for which elections are to be held, and
place the same in a box and hand the same to the President of the Sen-
ate who shall, without inspecting the said slips of paper, draw them
out, one at a time, and when each slip is drawn said President of the
Senate shall announce to the joint session the name of the Circuit
drawn, and the election for Judges and Solicitors of said Circuit shall
be in order if either or both said offices are vacant. The President of
the Senate shall continue to draw out the names of Circuits from said
box until all of said Judges and Solicitors are elected.
§184. (173.) (178.) Door-keeper and Messenger. Each house is entitled Acts <»f iso2
to a door-keeper and messenger, to perforin such duties as may be re- ~ 68 ' p ' 13f '"
quired of them, who shall be [elected as provided for the election of
clerk and secretary,] (a) and who shall receive the same pay as the
members of the General Assembly.
§185. (174.) (179.) Appointments for special purposes. When it shall
be necessary to carry into effect the seventh section of the third Article
of the Constitution, or for any like purpose, either of said officers may
appoint any person to execute the orders of each house and the warrant
of the presiding officer, who may receive for the service such compen-
sation as the General Assembly may appropriate.
§186. (175.) (180.) Joint finance committee. It is part of the duty of
the joint standing committee of finance to examine the accounts and
vouchers of the Comptroller and Treasurer as to all moneys received
into and paid out of the treasury during the last fiscal year, to compare
the warrants drawn during that period with the several laws by
authority of which they purport to be drawn, and to examine into the
other accounts and books of such officers, and to count the money on
hand at the time of the examination, and to examine the annual
reports made by said officers, to see if they are sustained by the true
condition of their offices, and report the result to each branch of the
General Assembly.
§187. (176.) (181.) Duty of the Secretary and Clerk at close of the ses-
sion. At the close of each session the Secretary of the Senate, Clerk
of the House of Representatives, and Secretary of State, must select
all the papers belonging to the General Assembly, except such as
relate to the unfinished and rejected business, and deposit them in the
office of the Secretary of State.
§188. (177.) (182.) Engrossed copies of laws, etc. The engrossed copies
of all laws and joint resolutions passed by the General Assembly must
be preserved by the chairman of the enrolling committee, and depos-
ited in the office of the Secretary of State.
§189. Per diem. The per diem of members of the General Assembly (») Acts of
shall not exceed four dollars, and mileage shall not exceed ten cents j*.' ~
for each mile traveled, by the nearest practicable route, in going to, and SSJ 8 ^ / .
returning from, the capital ; but the President of the Senate and the see.V.
Speaker of the House of Representatives, shall each receive not exceed-
ing seven dollars per day.
4
50 PART L— TITLE IV.--CHAPTER I.
Of the General Assembly.
§190. (179.) (185.) Sick members. If any member is detained by
sickness, after leaving home, in coming to, or is unable to attend the
house after he arrives at, the seat of Government, he is entitled to the
the same daily pay as an attending member; but no member shall
receive pay for absent time unless on account of sickness of himself or
family, or by express leave of the house of which he is a member.
§191. §180.) (186.) If a member die during the ecision. If any member
of the General Assembly shall die during the session, or afterwards,
without having received the whole or any portion of his pay, the
amount due for the whole session shall be paid to the widow of the
deceased, and if no widow, in like manner to the children.
§192. (181.) (187.) Accounts of members and officers, how audited. The
compensation due to the officers and members of the General Assembly
must be certified by the President and Speaker, respectively, upon the
report of the auditing committee to the Treasurer, who afterwards
shall pay each member who presents his accounts duly audited.
§193. Appropriations of money by resolution. [All resolutions which
(b) Adof May grant money out of contingent or any other fund, shall be treated
JJjJ Feth » in all respects in the introduction and form of proceeding on them, in
a similar manner with bills; they shall originate in the House of
Represensatives, and shall receive three readings previous to their
being passed, but the Senate may propose or concur in amendments, as
in case of bills.]
§193. (a.) Notice of local bills. Notice of an intention to apply for
Const, of the passage of a local or special bill shall be given in the following
see. '?f par 8 ' manner, to-wit : The title of the bill shall be published once in the
16 newspaper in which the Sheriff's sales are advertised, and shall be
U,f>.m. ' posted at the door of the Court House in the county or counties of the
residence of the person or persons, natural or artificial, to be affected
thereby, or in which the locality or municipality is situated, thirty
days before the introduction of such bill in. the House of Representa-
tives : Provided, that where there is no newspaper published in. the
county where local legislation is asked, that notice of said bill shall be
published in the paper where Sheriffs sales are published, and in all
notices to be published under this section, it shall not be lawful for any
newspaper to charge more than one dollar per square for said notice,
and in case of refusal to publish at said rates, then a publication in
any other newspaper having a circulation in the county where the
local legislation is desired, shall be sufficient. And the production of
the newspaper dated thirty days prior to the introduction of such bill
into the General Assembly, containing the notice required by this
section, with the certificate of the Ordinary that the notice has been
posted, shall be sufficient evidence that such notice has been given in
accordance with the requirements of the Constitution.
General Note on Legislature. — Members of Legislature not liable civilly for
errors of judgment or abuse of discretion when acting officially : 2 Thomp. Neg,, 817.
Motives of, not inquired into by Courts: 2 Thomp. Neg., 817. Freedom of debate: 3'
Am. D., 189. Power of, to alter what has been done during session: 12 Am. D., 25.
Cannot act judicially: 6 Am. D., 730, n. Power of to punish contempts: 1 Am. D.,
252 ; 12/178, n. Cannot be controlled by certiorari, prohibition or mandate : 18 Am. D.,
236, n. Privilege of, from arrest : 16 Am. D., 784, n. Privilege of, from service of civil
process: 16 Am. D., 785, n. Privilege of, is personal and must be claimed : 16 Am.
D., 785, 786, n; see, also, 26/234. Enactment of laws: See Cooley Const. Lim., 130.
PART I.— TITLE IV.— CHAPTER II.
51
Subordinate officers of the General Assembly.
CHAPTER II.
SUBORDINATE OFFICERS OF THE GENERAL ASSEMBLY.
Suction.
194. Election of Secretary and Clerk.
195. Oath of Secretary and Clerk.
196. Administering the oath.
197. Compensation of Secretary and Clerk.
197. (a.) Assistants of Secretary and Clerk.
Section.
198. Must give bond.
199. Qualifications of subordinate clerks.
200. Secretary and Clerk must file papers.
201. Receive no pay till hies are made.
202. When both houses meet, Secre.ary to aid.
§194. (182.) (188.) Secretary of the Senate and Clerk of the House. There
shall be a Secretary of the Senate and Clerk of the House of Represen-
tatives, elected by the members of each house, respectively, viva voce,
and a majority, of votes cast is necessary to elect. Their-term of office
shall be the time for which the members of the General Assembly are
elected.
§195. (183.) (189.) Oath of Secretary and Clerk and their assistants. Said
officers, their assistants, and engrossing and enrolling clerks, before
entering on the discharge of their duties, shall take an oath before their
respective presiding officers to discharge their duties faithfully and to
the best of their skill and knowledge, of which a minute shall be made
and entered on the journals.
§196. (184. (190.) President and Speaker may administer oaths. The
President of the Senate and Speaker of the House are to administer the
oaths required to the subordinate officers of their respective houses.
§197. (185.) (191.) Pay of Secretary and Clerk and their assistants. The Acts of 1878
compensation of the Secretary of the Senate shall be sixty dollars per ~ 9 ' p - 185 -
day for each session, and the compensation of the Clerk of the House of
Representatives shall be seventy dollars per day for each session.
§197. (a.) (192.) Assistant Clerks. Said secretary and clerk shall each ^ cts f£ m "'
select and appoint such assistants as may be necessary for the perfor- ' P '
mance of the clerical work of their respective houses ; including clerks
for such standing or special committees as may be allowed a clerk by
order of their respective houses ; the compensation of their said assist-
ants to be fixed by said secretary and clerk, respectively, and to be
paid out of the amounts allowed said secretary and clerk, respectively,
in the preceding section ; Provided, however, that if either house shall
for any purpose employ a stenographic reporter, the cost of such reporter
shall not be considered a part of the clerical expenses of such house,
but shall be provided for by a special appropriation.
§198. Must give bond. Immediately after their election, said secretary Acts of 1878
and clerk shall, each, give bond and security in the sum of five thous-~ 9 ' p * 185 "
and dollars, payable to the Governor, and his successors in office, and
conditioned for the faithful discharge of their respective duties, said
bonds to be approved by the President of the Senate and Speaker of the
House, respectively.
§199. (187.) (193.) Qualification and removal of certain clerks. No jour-
nalizing, recording, enrolling or engrossing clerk shall be appointed by
the Secretary of the Senate or Clerk of the House, until such clerk has
been examined by the enrolling committee, and certified to their res-
pective houses to be competent and well qualified to the discharge of
the duties required of him ; and such clerk shall be removed, at any
time, upon the recommendation of the enrolling committee of the house
in which he is employed.
§200. (188.) (194.) Secretary and Clerk must file papers and documents.
The Secretary of the Senate and the Clerk of the House of Representa-
tives must, within ten days after the adjournment of each session, file,
in proper order, all the papers and documents of their respective houses.
§201. (189.) (195.). Secretary and Clerk shall not be paid untill they have
filed papers. The records, papers and documents thus filed must be deliv-
52
PART I.— TITLE V.— CHAPTER I.
General provisions in regard to judicial power.
ered to the Secretary of State, who, upon receipt of the same, must certify
that such secretary and clerk have respectively complied with said
requisitions, and the Treasurer shall not pay their several salaries until
such certificate is produced.
§202. (190.) (196.) Secretary must aid when both houses meet.. When
there is a meeting of both branches of the General Assembly in one
chamber, said secretary and clerk shall be present and join in the dis-
charge of the duties required, and shall enter on the journals of each
the proceedings.
TITLE V.
THE JUDICIAL DEPARTMENT.
CHAPTER I.
GENERAL PROVISIONS IN REGARD TO JUDICIAL POWER.
Section,
203. Judicial power — where vested.
204. Rules of Court shall be observed.
205. Judge interested shall not preside.
206. Power of the Court.
Section.
207. Records shall not be removed.
208. Minutes read and signed by Judge.
209. The Court may act when no Clerk.
)3. (191.) (197.) Judicial power, where vested. The judicial power
•^3240. of the State is vested in such tribunals as are created by the Constitu-
tion, and such other Inferior Courts as are or may be established by
law, and such persons as are or may be specially invested w T ith powers
of a judicial nature.
§204. (192.) (198.) Rules of Court. The rules of the respective Courts,
legally adopted and not in conflict with the Constitution of the United
States, of this State, or the laws thereof, are binding and must be ob-
served.
Rules of Court binding: 8 Ga., 338. Section cited and construed: 33 Ga., 215;
56/229. Authority of Judges in establishing: 19 Ga., 220. Cannot, under this section,
have clerk's fees paid in advance : 30 Ga., 938. By twenty-first (21) Common Law rule,
cannot dispense with pleadings: 56 Ga., 673.
§205. (193.) (199.) Whe% judicial officer is disqualified. No Judge or
Act of i80i, Justice of any Court, no Ordinary, Justice of the Peace, nor presiding
§2i6, 4 2i4, officer of any inferior judicature or commission, can sit in any cause
2 is, 250, 450, or proceeding in which he is pecuniarily interested, or related to either
party within the fourth degree of consanguinity or affinity, nor of
i868 V T) ts i^9 which he has been of counsel, nor in which he has presided in any In-
ferior Judicature when his ruling or decision is the subject of review,
187V Art. o, without the consent .of all the parties in interest : Provided, that in all
Sec.'2, par! cases i n w hich the presiding Judge of the Superior Court may have
Acts of i88o been employed' as counsel before his appointment as Judge, he shall
-i, p. 58. preside in such cases if the opposite party or counsel agree in writing
' that he may preside, unless the Judge declines so to do.
Act of 1801 is constitutional: 4 Ga.,.133. Cannot be Judge in own case: 4 Ga., 385|
6/448. Where Judge of the Superior Court is interested a Judge of another Circuit
presides : 11 G,a., 438. Private interests of Judge incapacitate him : 17 Ga., 253. Where
Ordinary, kin to grantee of a homestead : 45 Ga., 621. Pecuniary interest of a Judge
when it does not vitiate an award : 39 Ga., 678. Executor of a will caveated, married
the sister of the wife of a Judge of the Supreme Court, does not prevent that Judge
from presiding in the case: 45 Ga., 414. Interest as arbitrators generally avoids the
award: 44 Ga., 473. Justice of the Peace, issuing a distress warrant, to be used by his
father: 55 Ga., 607. Judge dismissing a case where he was once of counsel, does not
make it illegal : 58 Ga., 355. Where Judge having been of counsel in the case invalid-
PART L— TITLE V.— CHAPTER I. 53
General provisions in regard to judicial power.
sites the decree : 62 Ga., 173. Mayor of a city where his official and judicial duties
conflict: 60 Ga., 225. Ordinary, although he is a surety on collector's bond, can order
an execution against the principal and himself : 60 Ga., 296. Where defendant married
sister-in-law of the Judge's wife : 53 Ga., 584. Directors and stockholders in a bank
can perforin no judicial act about the bank, attachment case: 59 Ga., 380-4.
T. U. P. Charl., 143; Broom Leg. Max., 118; Cooley Const. Lim., 411; 32 Am. R.,
172; 33/346, 579. When Judge's interest is minute, and his refusal to act would cause
a failure of remedy, he may lawfully act: 28 Am. R., 88. "Subject treated in: Well's
Jur., £163 et seq. As to J. P. : Well's Jur., §396.
§206. (194.) (200.) Powers of Courts enumerated. Every Court has
power :
1. To preserve and enforce order in its immediate presence, and as
near thereto as is necessary to prevent interruption, disturbance, or
hindrance to its proceedings.
2. To enforce order before a person or body empowered to conduct a
judicial investigation under its authority.
3. To compel obedience to its judgments, orders and process, and to
the orders of a Judge out of Court, in an action or proceeding therein.
Section cited: 34 Ga., 166.
4. To control, in furtherance of justice, the conduct of its officers and
all other persons connected with a judicial proceeding before it, in
every matter appertaining thereto.
Must be while suit pending: 34 Ga., 378.
5. To administer oaths in an action or proceeding pending therein,
and in all other cases, when it may be necessary, in the exercise of its
powers and duties.
6. To amend and control its process and orders, so as to make them
conformable to law and justice, and to amend its own record so as to
make them conform to the truth.
Case of an attachment before a magistrate : 45 Ga., 299. Declaration and process
amendable: 26 Ga., 430. Verdict placed on the minutes of the Superior Court nunc
pro tunc : 45 Ga. , 120.
Wells' Jur., 131, 137, etc. ; 6 How., 31.
§207. (195.) (201.) Records may be removed. No records or papers of
any Court must be removed out of the county, except in cases of inva-
sion, whereby the same may be endangered, or unless by order of the
Court.
§208. (196.) (202.) Minutes must be read and signed. The minutes of
every Court of record must be read each morning by the clerk in open
Court, and, on the adjournment of the Court, must be signed by the
Judge, Judges, or Justices thereof; but, if not signed, are valid, unless
repudiated by the Court.
Minutes need not be signed by the Judge or show where the Court met : 20 Ga., 328.
§209. (197.) (203.) Where there is no Clerk. The acts of a Court shall §251.
not lack validity for the want of a clerk ; and whenever there is no
clerk, or none to be had, or he is incapable of discharging his duty, and
any Court performs that duty itself, its action as such is valid.
General Note on Chapter I. — Liability of Judicial Officers : Judicial officers
of Superior Courts (Courts of Record) not liable for mistakes when acting within their
jurisdiction, even when acting corruptly, and jurisdiction is presumed in their favor:
Broom Leg. Max., 89; Wells' Jur., §175; 2 Thomp. Neg., 817; Dudley, 241; 6 Am. D.,
290; 7/574; 9/364; 10/582; 15/264; 18/433; 23 Am. R., 692; 25/688; full note, 694; 7
Wal., 523; 13/335. Those of Inferior Courts acting within jurisdiction not liable
therefor, except when acting corruptly, and in such cases, jurisdiction's not presumed,
but must be proved: 2 Thomp. Neg., 817; 24 Am. D., 46; 25 Am. R., 694, n; 32/609.
Judicial officers exceeding jurisdiction : 7 Am. D., 690; 18/643; 18/643; 29 Am. R., 80;
1 Smith's L. C, 805, 817. When acting ministerially, are responsible as ministerial
officers: 2 Thomp. Neg., 817; 24 Am. D., 46. Magistrate, when liable in trespass: 9
Am. D., 200; 12/170; 15/264; 18/643. Officers authorized to exercise judgment are not
liable for errors, in the absence of fraud or malice; 6 Am. D., 290, 359; 7/574, 731 ; 8/41;
54
PART L— TITLE V.— CHAPTER II.
Article 1. — The Supreme Court and its Judges.
24/46. Cases fully collected : 1 Add. Torts, §30, note p. 33. Distinction between Courts
of record and not of record: 3 Coolej' , 's Bl., 24; between Courts of superior or general,
and inferior or limited jurisdiction: Wells' Jur., §26; 1 Smith's L. C, 805. Maxims
relating to the judicial office: Broom's Leg. Max., 80: to the mode of administering
justice: Broom's Leg. Max., 114. Decisions of Courts, authority of: see note to §1 of
Code. Obiter dicta: Wells' Res. Adj., 527. Case deciding question incidentally; 16
How., 275; 13 O., 118. Rules guiding Courts in decisions: Ram's Leg. Judg. Doctrine
of stare decisis: Wells' Res. Adj., 530-605. Conflict of jurisdiction of State and U. S.
Courts : see note on U. S. Courts, appendix.
CHAPTER II.
THE SUPREME COURT AND ITS OFFICERS.
Article 1. — The Supreme Court and its Judges.
Article 2. — The Clerk.
Article 3. — The Reporter.
Article 4. — The Sheriff or Marshal.
ARTICLE I.
THE SUPREME COURT AND ITS JUDGES.
Section.
210. Judges of the Supreme Court.
211. Their term of office.
212. Their oath of office.
213. Two may hold the Court.
214. Who are eligible for Supreme Bench.
215. Vacancies, how filled.
Section.
216. When there is hut one Judge, etc.
217. Unanimous decisions, how reversed,
218. The powers of Supreme Court, etc.
219. Two of the Judges must concur, etc.
220. Officers of the Supreme Court.
Act of 1845, §210. (198.) (204.) Organization of the Supreme Court. The powers of
(a Const of^ 16 Supreme Court are vested in, and its duties performed by, three
1868, Art. 5, Judges, one of whom shall be styled the Chief Justice, who are elected
and 'Acts of D y ^ ne General Assembly for the term of six years, and shall hold their
1872, p. 82. offices until their successors are elected and qualified.
1877, Art. 6, §211. Official terms of the Judges of Supreme Court. The Chief Justice
sec. 2, par. anc [ Associate Justices shall hold their offices for six years and until
their successors are qualified. The term of the present Chief Justice
began on the 1st day of January, 1881, and will end on the 31st day of
December, 1886 ; the term of the present Associate Justice Crawford
began on the 1st day of January, 1881, and will end on the 31st day of
December, 1884, and the term of the present Associate Justice Speer
began on the 29th day of November, 1880, and will end on the 31st day
of December, 1882. Appointments to fill vacancies shall only be for
6 > the unexpired term, or until such vacancies are filled by elections
agreeably to the mode pointed out by the Constitution of this State.
§212. (199.) (205.) Their oath. Before entering on the discharge of
, their duties, they shall take the oath prescribed for Judges of the
Supreme Courts, and all other oaths required for civil officers.
§213. (200.) (206.) Two may "hold court. They, or two of them, may
hold said Court, and the oldest Judge in commission, in the absence of the
Chief Justice, is ■ president thereof, but without any greater powers
than his associates.
§214. (201. ( (207.) Who are eligible. No person shall be Judge of the
const, of Supreme Court unless at the time of his election he shall have attained
Sec 7 'i4, r par! the age of thirty years, and shall have been a citizen of the State three
i- years, and have practiced law for seven years.
Const, of
1877, Art.
Sec. 2, par
PART I.— TITLE V.— CHAPTER II. 55
Article 1.— The Supreme Court and its Judges.
§215. (202.) (208.) Vacancies, hotv filled. In case of a vacancy (from Act oM.sir.,
any cause) the Governor shall appoint and commission some qualified
of the Judges are disqualified from deciding any
otherwise, the Governor shall designate a Judge or Judges of the Supc
rior Court to preside in said case.
§217. (204.) (210.) Decision oj ', how reversed. A decision concurred in A^" 1 ' l ^ s
by three Judges cannot be reversed or materially changed, except by a
full bench, and then after argument had, in which the decision, by
permission of the Court, is expressly questioned and reviewed ; and
after such argument, the Court, in its decision, shall state distinctly
whether it affirms, reverses or changes such decision.
Unanimous judgment- is as binding as an Act of the Legislature: 59 Ga., 54. On
Act of 1858: 28 Ga., 597. Decision of full bench converted into statute by the Act of
1858, page 74: 30 Ga., 202; 59/54. What .can be reviewed: 38 Ga., 195. Stare decisis,
section cited and approved : 60 Ga., 253.
§218. (205.) 211.) Powers enumerated. The Supreme Court has au-
thority —
1. To exercise appellate jurisdiction, and that only, and in no case Act of i84f>.
to hear facts or examine witnesses. * p "
Appellate only as to questions actually presented : 5 Ga., 40-48. Only the evidence
that was before the Court below: 30 Ga., 161. Corrects errors of the Court below only :
36 Ga., 442. Has no original jurisdiction as to injunctions: 42 Ga., 124. Where Chan-
cellor's discretion exercised in an injunction case: 47 Ga., 530.
2. To hear and determine all causes, civil and criminal, that may ^284-
come before it, and to grant judgments of affirmance or reversal, or
any other order, direction or decree required therein, and if necessary,
to make a final disposition of the cause, but in the manner prescribed
elsewhere in this Code.
Section cited, final disposition : 62 Ga., 346-7. Dissolving of injunction: 15 Ga., 554.
hij unction case: 20 Ga., 91. Cannot add to the verdict: 29 Ga., 203. Case sent back,
unless certain sum written off from the judgment: 21 Ga., 590. Having the interest
written off from the judgment: 37 Ga., 341. Directing verdict to be reduced: 44 Ga.,
179. "Writing off from the verdict: 47/328; 46/454. Instructions where the Court
below misinterprets the decision : 8Ga.,95. Arbitration case and instructions: 33 Ga.,
485. Instructions as to alimony: 33 Ga., 99(Suplt). Remanding case so as to modify
the decree: 30Ga.,879. Injunction and receiver rescinded with instructions : 37 Ga.,
37. Com t costs adjudged against either party: 32 Ga., 499. Modifying the judgment
bslow: 34 Ga., 119. Disposing finally of a case: 34 Ga., 459. Reversal, or a decree to
be taken as directed : 40 Ga., 458-466." As to directing the judgment: 61 Ga., 528.
"Order.' 1 etc. : 9 0., 26, 29.
3. To grant any writ necessary to carry out any purpose of its organ-
ization, or to compel any inferior tribunal or officers thereof to obey its
order.
4. To appoint its own officers, and to commission any person to exe-
cute any specific order it may make.
5. To establish, amend, and alter its own rules of practice, and to
regulate the admission of attorneys.
6. To punish for contempt by the infliction of a fine as high as five
hundred dollars, and imprisonment not exceeding ten days, or both.
7. To exercise such other powers, not contrary to the Constitution,
as are or may be given to it by law.
Power of, terminates if ter remiUitw : 21 Am. D., 118; but not until latter is filed in
Court below: 21 Am. D., 12<>. Kven tben Court may correct inadvertence or irregu-
larity in remittitur: 21 Am. IX, 121.
§219. (206.) (212.) Two Judges must concur. The concurrence of two §4283.
of said Judges is necessary to make a reversal, or to grant any order
disturbing the judgment of the Court below ; and when only two pre-
56 PART L— TITLE V.— CHAPTER II.
Article 2.— The Clerk.
side in a cause, and they disagree as to the reversal or as to said order,
the judgment stands affirmed.
Stated: 28Ga.,388; 36/272; 20/698.
§220. (207.) (213.) The officers of the Supreme Court. The officers of
the SupremejCpurt are a Clerk, a Reporter and assjstants,a Sheriff and
deputies. ■GrZe^j^^^^g^^ /r& . d>/ . &Z£>+f\ i&~^ **rZ<4&<
A?-
ARTICLE II.
THE CLERK.
Section.
221. His appointment and oath of office.
222. May appoint a deputy.
223. The duties of the clerk enumerated.
223. (a.) Funds, how applied.
Section,
224. Must tax costs, etc.
225. Who liable for costs, etc.
225. (a.) Clerk's compensation.
§221. (208.) (214.) The Clerk of the Supreme Court. The Clerk of the
Act of i84i. Supreme Court holds his office for six years, unless removed for inca-
o. p. 451. p ac ity 5 improper conduct, or neglect of duty ,' and before entering upon
his duties he must take an oath faithfully to discharge them, and also
all other oaths required of civil officers.
§222. (209.) (215.) May appoint deputy. He may appoint one or more
§4269. deputies in his discretion, under such rulesas the Court may adopt, he
being responsible for the faithful performance of their duties ; and when
so appointed their powers and duties are the same as his.
§223. (210.) (216.) His duties. It is his duty—
\ct fi84" ^ '^ keep an office at the seat of Government in one of the apart-
(. p. 45i. ' ments of the Capitol, where all books, records and archives, and the seal
-2?p.°2i5 851 °f tne Court shall remain.
Acts of 1855 2. To attend all sessions of the Court and obey all of its lawful orders.
Acts of 1857, 3. To keep in well bound books fair and regular minutes of the Court's
p. 93. proceeding, a record of its judicial acts, a docket of its causes, and such
other books as said Court may require him to keep.
4. To certify, when required, upon payment of his lawful fees, all
minutes, records, or files of said Court.
5. To arrange the cases on the docket by Circuits, and to give notice
in one of the newspapers, printed at the place where the Court is to be
held twenty days previous jbo its session, of the order of arrangement.
6. To submit to the Governor a fair statement of each criminal pau-
per case, showing the items of costs,- the nature of the crime charged,
and the county from whence it came, under the seal of the Court, as a
condition to a warrant in his favor for their payment.
£^2^^, ^i^tL 7. To make out a remitter of every case within ten days from the
/Li^-' ' *r'^tT adjournment of the Court, and to transmit it to the attorney of the
K/l. SL£.' *L~r party prevailing, together with a certificate of the amount of the costs,
t *^ i ^ t ^^ # and by whom paid, which remitter shall consist of a copy of the judg-
ment ol the Court as entered on the minutes, and nothing more.
8. To issue and sign all writs and processes of every description issued
. under the authority of the Court.
9. To administer such oaths and take such affidavits as the business of
the Court or the law may require.
10. To discharge whatever other duty may be required by law, or
necessarily appertains to his office.
11. To collect all costs due on cases in the Supreme Court, and to pay
Actsofi875, over to the Treasurer of the State all money arising from costs collected
p„83. . ag aforesaid [ n excess of four thousand dollars, which sums of money so
paid shall remain as on deposit in the State treasury, and constitute a
PART L— TITLE V.— CHAPTER II.
Article 3.— The Reporter.
separate and distinct fund, to be styled the library fund, and subject
only to be paid out as provided in section 223 (a) of this Code.
12. On or before the first day of January in each and every year, toActsof
submit to the Treasurer of the State, in writing, a full and fair state- 1875 « p - 87
ment of each case before the Supreme Court during the year preceding
his report, showing the items of cost, amount collected, and amount
not collected; and if' there shall appear any balance due by said Clerk
not collected, (except costs due in pauper cases) or if collected and not
paid over, then, said Clerk shall be liable to be ruled by the State Treas-
urer in the Supreme Court, in term time, on the same terms that other
collecting officers are ruled.
§223. (a) Funds, how applied. The funds thus arising from costs as Acts of
aforesaid, in excess of said sum of four thousand dollars, shall be sub- 18 ' 5
ject to the order of the Judges of the Supreme Court, upon a warrant
of the Governor, based upon the certificate of the Judges aforesaid, and
shall be used and applied solely to the purchase of such books, pam-
phlets, or other publications as may be selected or directed to be pur-
chased by the Judges aforesaid
p. 87.
(211.) Cost, how taxed. When judgment shall be pronounced Act °^ 847 »
in any cause, he shall tax the costs thereof, item by item, which shall Actof isso,
be entered on the minutes at the foot of the judgment, without charge. Actsoflissi
He shall make no charge for attaching the seal to the remitter, nor to -2, p. 214.
any precept issued by him, nor for anything but services actually ren- _^ p ° 2 o2. .
dered ; nor shall he record the bill of exceptions, or transcript of the $^J' ^r 96,
1877, Art. 6,
38Ga.,693. Sec. 21.
records from the Court below
Fees of Clerks : 20 Ga„ 522. Rule 27 of Court
§225. (212.) Costs, attorneys, ivhm liable for. Every attorney for the Const, of
plaintiff in error, who argues or presents a cause to the Supreme Court, sec.'2i. r
is liable to the Clerk for costs, except in a pauper case.
Rule 16 of Supreme Court : 1 Ga., XIII.
§225. (a) Pay, four thousand dollars. The Clerk of the Supreme Court Acts of
shall receive, as compensation for his services, the sum of four thousand
[dollars per annum, to be paid out of the money arising from costs in
cases before the Supreme Court : Provided, said costs shall amount to
^aicl sum of four thousand dollars as aforesaid, and if the costs shall not
imount to said mentioned sum, then the difference between the actual
imount of costs, and said four thousand dollars shall be paid said Clerk
rom the treasury of the State, upon the certificate of the Judges of the
Supreme Court.
ARTICLE III.
THE REPORTER.
Section.
226. Appointment and oath of Reporter.
227. May appoint an assistant.
228. Must attend Courts, etc.
228. (a.^ Reports' how published.
(b.) Estimates of Reporter.
(c.) Style of printing.
(d.) Sale of Reports.
(e.) Reporter's duties and pay.
228.
228.
228.
228.
Section.
228. (f.) Copyright.
228. (g.) Reports to be electro typed,
228. (h.) Electrotvped, when.
228. <i.) Plates to be kept.
•229. May receive advances.
230. Reports must not contain arguments.
231. Penalty for failing to publish Reports.
§226. (213.) Appointment and oath of. The Reporter of the Supreme Actof 1845,
'ourt holds his office for the same term and on the same conditions as Act 'ofik?,
he Clerk, and before entering upon his duties, must take the same c - p- 453
aths.
§227. (214.) Assistant Reporter. He may, with consent of the Court, //^rr^AT."
nder such rules as they may adopt, appoint an Assistant Reporter/
'hose duties are the same as the Reporter's.
58 PART L— TITLE V.— CHAPTER II.
Article 3.— The Reporter.
Act of 1845, §228. (215.) To attend Courts. It is his duty :
1. To attend all sessions of the Supreme Court, by himself or his
assistant.
2. To publish the decisions of said Court in such form, that all the
/^L-i.7^.^tsof decisions made during one term shall be printed in one volume, unless
' * it shall become necessary to add any part of the decisions of the suc-
ceeding term, to make a volume of proper size, but in no event shall
more than two volumes be published annually.
The Judges of said Court may direct said Reporter to omit the pub-
lication in full of such cases as in their opinion may be understood
from the written synopsis of the points decided, made by them at the
time of the decision; and said Reporter shall only publish said syn-
opsis in such cases.
§228. (a.) Reports, how published. The Supreme Court reports of this
4 ctso 1 f 5 J 878 State shall be published by, and at the expense of, the State, in the
' p ' " manner hereinafter pointed out.
§228. (b.) Estimate of Reporter. It shall be the duty of the Supreme
Acts of 1878 Court Reporter to estimate the number of Supreme Court reports that
" ' p ' ' will probably be demanded by the public, in addition to the number
required by the State, and file a report of said estimate in the Execu-
tive office immediately upon the preparation of any given volume of
Reports for the press ; and in said report to the Governor, he shall state
the quantity of matter which the forthcoming volume of the Reports
contains : Provided, that arguments of counsel shall not be published
in such Reports.
§228. (c.) Style of printing. The printing and binding of said Su-
Actsofi878preme Court Reports shall be done upon the terms and in the manner
that other State printing is done, and the printing, paper and binding
shall be similar in style to that now used in the publication of said
Reports.
§228. (d.) Sale of Reports. The Governor shall ascertain the cost to
Acts of 1878 the State, per volume, of the whole edition of any given volume of the
Reports published, which shall, in no case, be less than one thousand
copies, and notify the State Librarian of the cost per volume; and the
State Librarian is hereby authorized and required to sell to the public,
for cash only, the portion of the Reports allotted for that purpose, at
the actual cost to the State, and deposit each day the money thus
received into the State Treasury b3fore the expiration of the business
hours of that department : Provided, also, that until six months from
the issuance of any . volume, the Librarian shall sell only one copy
thereof to the same purchaser : and provided, further, that after the
expiration of such period, the Librarian, under the direction of the
Judges of the Supreme Court, may exchange such copies as are not
likely to be sold, for Reports of the highest Courts of other States, or
such other law books as said Judges may select, and upon such terms
as they may direct.
§228. (e.) Reporters duties and salary. The duties of the Supreme
Acts of 1878 Court Reporter shall remain as now provided by law, except so far as
-9, p. 158. they mav D3 changed by the four preceding sections ; and he shall also
furnish the printer the manuscript of the decisions, read the proof,
and carefully correct the same, and furnish for each volume a correct
and carefully prepared index, and that said Reporter shall receive for
his services a salary of two thousand dollars per annum, and no other
perquisite or emolument whatever.
Acts of 1878 §228. (f.) Copyright. The copyright of said Reports shall belong to
-9, P . 158. the State.
Acts of 1880 §2^8. (g.) Reports to be electrotyped. The Governor shall require all of
-i, p. i4i. the Georgia Reports hereafter published, commencing with the sixty-
PART L— TITLE V.— CHAPTER II.
59
Article 4.— The Sheriff.
sixth (66th) volume, to be electrotyped, and it shall be his duty to see
to it that the additional expense thus incurred shall not exceed that
paid for similar work by other States of the Union.
§228. (h.) Electrotyped, when. Whenever the Librarian of the State Acts ofisso
shall report to the Governor that there are not more than twenty-five '
copies of any electrotyped volumes on hand, the Governor shall forth-
with have five hundred additional copies struck off, and shall draw his
warrant upon the printing fund for the expense thus incurred.
§228. (i.) Plates, hoiv kept. When the first edition of each volume is Acts of 1880
printed, the printer shall carefully box up the plates and turn them _1, p - 14L
over to the State Librarian, who shall preserve them for further use.
§229. Treasurer may advance to the Reporter. [It shall be lawful for the (a) Acts of
Treasurer to advance to said Reporter such sums, not exceeding three- 18 ' 0, p " 48 '
fourths of the value of such portion of the volume as may be printed,
whenever said Reporter shall certify, on oath, that' such portion has
been printed, taking a receipt for the sum or sums thus advanced, which
shall be his voucher and an offset to the Executive warrant for the pay-
ment of the completed volume.] (a.)
§230. (216.) (222.) Reports, not to contain arguments of counsel. TheActofissa
volumes of Reports must not contain any argument or brief of counsel, c ' p * 455 "
beyond a statement of the points and authorities.
§231. (217.) (223.) Reports, failure to publish. If he fails to publish his
volumes of Reports within six months of the time of their delivery to
him, he forfeits one-fourth of his salary for every additional month's
delay, unless a majority of the Court will certify that the delay was not
from his fault, or of those under his control; and if lie fails to publish
and furnish them as required in preceding section, he also forfeits one-
fourth more of his salary, and must be removed by the Supreme Court.
§232. (Repealed by Act of 1878-9, p. 158.)
ARTICLE IV.
THE SHERIFF.
Section.
235. Sheriffs fees in the Supreme Court.
Section.
233. Sheriff shall attend Supreme Court.
234. If he fails, Court may appoint .
§233. (219.) (225.) Duty of the Sheriff of the county ivhere the Court is held.
The Sheriff of the county wherein a session of the Supreme Court is V^l^-X a^L^C?
holden, or his deputy, must attend daily the sessions thereof, obey all \/c^ -j ^t^l
lawful orders, execute all lawful commands and process, and preserve/ /'
order.
§234. (220.) (226.) The Court may appoint an officer. On failure of said
Sheriff, or a lawful deputy, to attend and discharge the duties required,
or any part thereof, the Court may appoint some fit and proper person
for such purpose.
§235. (221.) (227.) Sheriffs fees. He shall receive for his services the
fees allowed in the Superior Court for like services, and when he per-
forms a journey in the discharge of his duties, he is entitled to the same
pay for mileage as a Marshal of the United States.
fy.
<f/fft
66
PART I.— TITLE V.— CHAPTER III.
Article 1. — The Superior Court and its Judges.
CHAPTER III.
THE SUPERIOR COURTS AND THEIR OFFICERS.
fa? *^T /*csz> ^gsc^f^£^^ ^^ Article 1. — The Superior Court and Judges.
j£a>**^0- dSZ^fc*- £<>^e~-* Article 2. — The Clerics.
*^z- ^/~~ ^S^l^i - Article 3. — The Receiver. ^ ,
ARTICLE I.
THE SUPERIOR COURT AND ITS JUDGES.
Section.
236. Election and official term of Judges.
237. Their oath of office.
238. Who are eligible to Judgeship.
239. Shall not practice law.
240. Shall not be deprived of his office.
241. Must hold Court twice a year.
242. His jurisdiction.
243. Duties of the Judge.
244. Shall deliver his charge in writing.
245. Such charge shall be filed.
5236.
Section.
246. Jurisdiction of the Superior Courts.
247. Powers enumerated.
248. When the Judge is absent.
249. Can only exercise powers granted.
250. When the Judge is disqualified.
250. (a. I Parties may select Judge, when.
251. May be impeached.
252. Clerk appoints Judge, when.
253. Perform no judicial act out of State.
254. Judge shall qualify Ordinary.
(222.) (228.) Election and term of the Judges. There shall be a
of lSs^Art J u ^g e °f * ne Superior Courts elected by the General Assembly in joint
5, s'ecs. 3, 9', session on such day or days as shall be fixed by joint resolution of both
Sto/pjsl* nouses 5 f° r eacn Judicial Circuit, whose term of office shall be four
const, of years and until his successor is elected and qualified, and the terms of
sec.' 3, Var! office of such Judges shall begin and end as follows : The terms of the
a d t sec 3 i2 Judges wno were elected in 1878 shall expire on the first day of Janu-
' ary four years thereafter, and the terms of the Judges who were elected
in 1880 shall expire on the first day of January four years next there-
after, and all succeeding terms of the Judges of the Superior Courts
(except to fill vacancies,) shall begin on the first day of January after
their elections and expire on the first day of January four years there-
after. But if the time of the meeting of the General Assembly shall
be changed, the General Assembly may change the time when the terms
of the Judges thereafter elected shall begin.
§237.' (223.) (229.) Oath of Judges. Before entering on the duties of
their office, they must take the oath required of all civil officers, and in
addition the following, viz. :
" I swear that I will administer justice without respect to person,
and do equal rights to the poor and the rich, and that I wdll faithfully
and impartially discharge and perform all the duties incumbent on me
as Judge of the Superior Court of this State, according to the best of
my ability and understanding, and agreeable to the laws and Consti-
tution of this State and the Constitution of the United States. So help
me God."
§238. (228.) (234.) Judges, who eligible. No person is eligible to such
const, of Judgeship unless, at the time of his election, he shall have attained
se?'io rt ' 5 ' ^ ne a » e °^ * nir ty years, and shall have been a citizen of the State three
clause '3. years, and have practiced law for seven years.
PART L— TITLE V.— CHAPTER III. <>1
Article 1.— The Superior Court and its Judges.
§239. (229.) (235.) Judges shall not practice law. Such Judges are. Const, of
prohibited from practicing law in any of the Courts of this State be- j^'^ 1 *' '''
tween the times of their election and qualification, but they may prac-Act oT 1824,
tice until their qualification in any case in which they may have been Act of 1848,
actually employed before their election ; and they are also prohibited c - *»• 91,
from practicing as attorneys, proctors or solicitors, in the District or
Circuit Courts of the United States after their election or while in
commission.
J240. (230.) (236.) Attaching the county of his residence to another Circuit.
A person having been appointed a Judge of any Circuit cannot be de-
prived of his office by attaching the county in which he resides to a
different Judicial Circuit, but he continues to discharge its duties as
though he resided in the Circuit. a?
§241. (231.) (237.) Must hold Courts as prescribed by law. Said Judges Const of _ %c**yJ+£*
must hold the Superior Courts of each Circuit at the county site and sec'4, par/ && d *"* - 4
Court House (if any) of each county, or other place therein designated ^ f ry9 d&U*** n
bylaw, twice each year, at such times as is now or may be prescribed c. p. 457. aJ*~*S~£>
by the General Assembly. y^ j? -J^JZ, /£* Jft % '^^'f^ "
Adjournment to future day or Week: 26 Ga., vflW* Musttake notice of me^ing/ajra.
adjournments of Superior Court: 36 Ga., 255. Cannot adjourn by order in vacation :
39 Ga., 718. Must take notice that Court may be held at the time and place fixed by
law, although no Judge for that Circuit : 44 Ga., 23. Illustrative of this section: 31
Ga., 411.
Wells' Jur., §132. On public holidays: 35 Am. R., 736.
§242. (232.) (238.) Jurisdiction of Judges. The jurisdiction of the Act of isoe,
Judges of the Superior Courts is co-extensive with the limits of this c - p ' 46 °-
State, but they are not compelled to alternate unless required by law.
Section cited and construed: 64 Ga., 561; 63/388; 44/23. Construction of this sec-
tion in regard to Judges alternating: 64/561.
Alternation of Judges: Wells' Jur., §174.
§243. (233.) (239.) Duties of Judge. Each of said Judges shall dis-
charge all the duties required of him by the Constitution and laws for
Circuit for which he was elected or appointed, although he may hold
the Courts in other Circuits, and may also exercise other judicial func-
tions for them when permitted by law.
Construing this section, which is cited : 64 Ga., 561.
§244. (234.) (240.) Written charges. The Judges of the Superior Act of 1860 .
Courts of this State shall, in all cases of felony, and on the final orP- 42 -
appeal trial of all civil cases tried before them., give their charges to
the jury in writing ; that is to say, shall write out their charges and
read the same to the jury, when the counsel for either party shall
require them to do so ; and that it shall be error for such Judge to give
iny other or additional charge than that so written out and read.
Imperative : 61 Ga., 402. Incorrect practice to send written charge with the jury to
heir rooms : 31 Ga., 625. No oral additions allowed : 55 Ga., 208. Substance of written
equests charged sufficient: 60 Ga.319., Asked before commencement of argument
o the jury, Judge should so charge : 54 Ga., 231. Oral requests to charge need not be
egarded: 56 Ga., 554: 47/101. Where Judge requested in writing to charge, may still
nodify orally: 38 Ga., 304. Additional charge in a criminal case should be given
vhen defendant's counsel are present: 51 Ga., 567. Comments on requests to charge
mist be in writing if so requested: 57 Ga., 285. Can read a request to the jury — that
3, the Judge can, and say that is the law : 12 Ga., 295-329.
§245. (235.) (241.) Shall be filed. The charge so written out and read as Acts of
foresaid shall be filed [as soon as delivered] with the clerk of the Act'of'iSb
'ourt in which the same was given, and shall be accessible to all per- p- 42.
ons interested in the same ; and the clerk shall give certified copies
hereof to any person applying for the same, upon the payment of the
isual fee.
62 PART I.— TITLE V.— CHAPTER III.
Article 1. — The Superior Court and its Judges,
Act of 1799, §246. (236.) (242.) Jurisdiction of Superior Courts. The Superior
§3086. 1135 ' Courts have authority-
Section cited : 64 Ga., 297,
1. To exercise original, exclusive, or concurrent jurisdiction (as the
case may he,) of all causes, both civil and criminal, granted to them by
the Constitution and laws.
Equity powers: 4 Ga., 404-572. Cannot consent to illegal jurisdiction: 4 Ga., 47.
Foreigner not a party, the Court has no jurisdiction over: 5 Ga., 497. Consent juris-
diction does not bind creditors: 5 Ga., 527. Foreigner may waive his rights and sub-
mit to the Courts here : 8 Ga., 83. Judgments without jurisdiction are void : 8 Ga., 143.
2. To exercise the powers of a Court of equity.
Where can do at law whatever could do in equity under Act of 1820: 9 Ga., 65.
Chancery jurisdiction in the Superior Courts : 10 Ga., 429. Law side of the Court hav-
ing obtained jurisdiction, the case cannot be drawn into equity, generally: 37 Ga.,
364.
(a) Const, "of 3. To exercise appellate jurisdiction in certain civil cases tried in
secf'6 Art ' 5 " ^ ne County Court, or where judgment is confessed, and from judgments
clause 2. of the Ordinary [and Justices' Courts], (a.)
iseSp. i3i. 4. To exercise a general supervision over all inferior tribunals, and
i877 St Art 6 ^° rey i ew aR d correct in the manner prescribed by law the judgments
sec' 6, par! of the Justices of the Peace, corporation Courts or councils, or any in-
par. e 2.' 7 ' ferior judicature, or any person exercising judicial powers, and of the
, Ordinary, except in cases touching the probate of wills and the grant-
' '' l ^ " ing of letters of administration, when there must be a special jury im-
panneled.
5. To punish contempt by fines not exceeding two hundred dollars,
and by imprisonment not exceeding twenty days.
May in vacation force obedience to a receiver of the Court: 34 Ga., 162. Where
Justice of the Peace not an officer of the Superior Court: 54 Ga., 622.
Contempt: 1 Am. D., 252; 2/391; 5/712; 12/178; 19/460; 17 Am. R., 528. See
American Law Register for Sept. and Oct. 1881, and note to #4711.
6. To exercise such other powers, not contrary to the Constitution, as
are or may be given to such Courts by law.
Jurisdiction of the Superior Court is limited by the Constitution of the State : 13
Ga., 2-8. As Courtsof chancery in the administration of estates: 14 Ga., 323. Exclu-
sive jurisdiction of land caveats and matters relating to titles to land: 14 Ga., 349.
As to bail in criminal cases: 24 Ga., 391. Cannot enforce order of a Justice of the
Peace as to possessory warrant: 26 Ga., 388. Rule against Sheriff for tax ft. fa. form-
erly in the Inferior Court : 29 Ga., 212. County Court and Superior Court have con-
current jurisdiction as to minor offenses: 36 Ga., 87. As to free persons of color prior
to March, 1866 : 36 Ga., 475. As to corporations for wrongs on its members : 38 Ga., 608.
Superior Court has jurisdiction of misdemeanors as well as of felonies: 41 Ga., 589.
Concurrent jurisdiction of one hundred dollar claims with Justice of the Peace Courts:
43 Ga., 360. Of homestead, where bankruptcy, no jurisdiction : 44 Ga., 133. By certiorari,
as to Ordinary allowing a homestead : 45 Ga., 483.
See generally Wells on Jurisdiction.
§247. (237.) (243.) Judges may grant writs of certiorari, etc. The Judges
of the Superior Courts have authority —
Section cited: 64 Ga., 297.
1. To grant for their respective Circuits writs of certiorari, supersedeas,
quo warranto, mandamus, habeas corpus, and bail in actions ex dedicto.
Mandamus granted at any time returnable in term time: 55 Ga., 258.
2. To grant bills quia timet, writs of injunction, prohibition, and ne
exeat. »
3. To grant all other writs, original or remedial, either in law or
equity, that may be necessary to the exercise of their jurisdiction, which
is not expressly prohibited.
4. To hear and determine questions arising upon writs of habeas corpus
or bail, when properly brought before them; all motions to grant, re-
vive, or dissolve injunction, to give new security or lessen the amount
of bail, and to perform any and all other acts required of them at
Chambers.
PART L— TITLE V.— CHAPTER III. 63
Article 1. — The Superior Court and its Judges.
5. [To hear and determine, in vacation, all demurrers to bills in (a) Acts of
equity, and all motions to revoke or change orders appointing a re- 1G,) ' p ' m> '
ceiver, on ten days' written notice being given to the opposite party or
his solicitor, by either party, and by service with a copy of such de-
murrer, or motiori to revoke or change such order.] (a.)
But not to hear a demurrer to mandamus nisi : 55 Ga., 258.
6. To administer oaths and to exercise all other powers necessarily /&~*^y
appertaining to their jurisdictions, or which may be granted them by
law. *«— £-e^~^~*~^<s C—
Necessarily appertaining to their jurisdiction : 34 Ga., 166. ^/*? <£>—/• r* rfr A
§248. (238.) (244.) Absence of Judge. The authority granted "in the
preceding section to each Judge in his own Circuit may be exercised by
any Judge of another Circuit whenever the resident Judge is absent
from the Circuit, so that the business cannot be done as speedily as nec-
essary, or is indisposed or interested, or is laboring under any disquali-
fication or inability to serve, or in case the Circuit should be, from any
cause, without a Judge. The authority, when thus exercised, should
show the grounds.
§249. (239.) (245.) Power in vacation. Said Judges cannot exercise
any power out of term time, except the authority is expressly granted;
but they may, by order granted in term, render a judgment in vacation.
May by order in term time grant a new trial in vacation: 55 Ga., 346. Consent
orders as to new trials in vacation must be abided by : 59 Ga., 628. Bill for a new trial :
52 Ga., 120; 46/115. Only have power in vacation by reason of order passed in term
time: 60 Ga., 123. Can by order in term time make award in vacation the judgment
of the Superior Court : 60 Ga., 532. Cannot decree specific performance in vacation : 60
( la., 240. Section cited and construed : 55 Ga., 258. Stated: 55 Ga., 348. Judgment in
vacation: 1 Ga., 300. Enforce delivery of property to a receiver: 34 Ga., 162. What
can be heard in vacation : 37 Ga., 251.
§250. (240.) (246.) When the Judge is disqualified. When from any Act of isjo.
cause the Judge of the Superior Court is disqualified from presiding, »" 43 -
he shall procure the services of a Judge of another Circuit, to try said
cause if he has to appoint an adjourned term for that purpose. If the
parties litigant consent thereto and select any attorney practicing in
the Court to preside in such a case, the Judge shall have such consent
entered on the minutes, and the attorney so selected shall exercise all
the functions of a Judge in that case.
When under Act of 1801 three or more of the Judges of the Inferior Court were to
preside: 4 Ga., 133. Where arbitrator interested: 4 Ga., 385. Constitutionality: 39
Ga., 361. Attorney selected: 41 Ga., 268.
§250. (a.) When, from any cause, the Judge of the Superior or any Actsof
City Court, is disqualified from presiding in any civil case, and has 18/8 ' 9 > p- 38>
failed to procure the services of a Judge to try said cause, then the par-
ties litigant, by consent, may select any attorney of this State to pre-
side in said case, and the attorney so selected, when the consent is
entered on the minutes, shall exercise all the functions of a Judge in
that case.
§251. (241.) (247.) May be impeached. If any Judge does not comply
with the provisions of section 250 within a reasonable time when it is
in his power to do so, it is a ground of impeachment.
§252. (241.) Judge appointed by Clerk, when. In all cases mentioned in Acts of
the preceding sections when the case or cases are reached, in their order 1878 " 9 » P- 28.
on the dockets, without an agreement by the parties, then it shall be
the duty of the Clerk of the Superior Court to select some competent
attorney, practicing in that Court, who shall likewise have authority
and preside in said case as aforesaid.
§253. (242.) (248.) Judge absent from State. No Judge of the Superior Acts of
Courts shall have authority to perform any judicial act required ofhim 1868 ' p * m
by law, when beyond the jurisdiction of this State.
Where certiorari granted by Judge out of this State, it is void : 12 Ga., 612.
64 PART I.— TITLE V.— CHAPTER III.
Article 2.— The Clerks of the Superior Court.
§254. Who shall qualify Ordinary. The several Judges of the Superior
(a) Acts of Courts in their respective Circuits shall have power, and it shall be
53 7 54.' PP " their duty to qualify the Ordinaries of the several counties in their Cir-
cuits, and approve the official bonds of such Ordinaries, and cause such
bonds to be returned to the Governor with the dedinffus., to be filed in
the Executive office, and in all cases a certified copy of such bond shall
b3 sufficient original evidence on which to sue and recover. The pro-
visions of this section shall extend to Clerks of the Superior Courts,
when the Ordinary and clerk are the same person, and such officers
must qualify at or before the spring term of the Court after their elec-
tion. •
ARTICLE II.
J? A /? ^ s /l VTHE CLERKS OF THE SUPERIOR COURTS.
Section./' / 7 Section./ /
255. Election of Clerk of Superior Court.
256. Cannot practice law.
257. Vacancy^ how filled.
258. Elected to fill a vacancy.
259. In case of a tie, etc.
260. An appointment must be made.
261. Who may act.
262. Appointee may hold to end of term.
263. Judge may appoint in certain cases.
264. How long such appointee may hold.
265. Oath of Clerk of Superior Court.
266. Must give bond and security.
267. The place of the office— duties.
268. Powers of the clerk, etc.
269. Penalty for a failure of duty.
270. Clerk subject to rule.
271. Subject after retiring from office.
272. How removed from office.
2?3. His office subject to be examined.
const, of §255. (243.) (249.) Term of office. The Clerks of the Superior Courts
Sec 8 'i4. rt " 5 ' are elected for the term of two years.
§256. (244.) (250.) Cannot practice law. No person is eligible to the
Act of 1799, office of Clerk, or to perform any official duty as such, who, while in
c. p. 574. s UC h capacity, practices law in his own name or another's, as a partner
or otherwise, in any Court of law or equity in this State, except in his
(a) Acts of own case: [Provided, that this section shall not apply to the Clerk of
1871-2, p. 23. the City Court of Savannah, except as to causes in said City Court], (a.)
Does not apply to the Clerk of the County Court under the Act of 1866: 55 Ga;,
282-3.
§257. (245.) (251.) Vacancy. If a vacancy occurs, (or will shortly) the
const, 1868, Ordinary of the county where it happens shall give notice in one or
14 Art. li," more of the public gazettes of said county, (if any) and at the Court
clause 7. House, and at three or more of the most public places of said county,
Act of 1826. twenty days previous to the day of election, which shall be appointed
e. P . 313. j^ him _
Vacancy, how filled: 14 Ga., 596-628. Where there are contestants for Clerk of
Court of Ordinary, quo warranto should be resorted to, to test the right : 7 Ga., 473. How
should establish the right: 8 Ga., 368.
§258. (246.) (252.) One elected to fill a vacancy. The person elected on
said day shall hold his office for the unexpired term of his predecessor.
The returns of the election must be made to the Governor, who must
commission him.
- §259. (247.) (253.) In case of tie. Should any two or more candidates,
Act of 1826, at an election to fill said vacancy, or at a regular election, have the
c, p. 2i3, highest and an equal number of votes, said Ordinary shall appoint and
advertise another election in the manner prescribed in the preceding
section, and so do until a choice is made.
§260. (248.) (254.) Maybe appointed. As soon as a vacancy occurs, or
Act of 1826, in anticipation of it, said Ordinary must appoint some qualified person
c. p. 2i3. ^ discharge the duties of clerk until the vacancy is filled.
§261. (249.) (255. Sudden emergency. If from any sudden emergency
Act of 1826, there is a vacancy, and it is not immediately supplied, the Ordinary
c. p. 2i3. or his clerk shall thus act.
PART I.— TITLE V.— CHAPTER III. 65
Article 2.— The Clerks of the Superior Court.
§262. (250.) (256.) How long appointee to fill vacancy holds. When a
vacancy occurs, and it is not more than six months from the time the
election can be appointed by said Ordinary and held until the existing
term will expire, the person or persons appointed shall discharge the
duties of the office for the balance of the term, and there shall be no
special election.
§263. (251.) (257.) Judge may appoint clerk. If there is a vacancy, or Act of ma,
the clerk and his deputy for any reason do not act as clerk at the time Actonsa
provided by law for holding any of said Superior Courts, the presiding - 4 - p- - 8 -
Judge thereof shall appoint a clerk, who holds his office during the §208.
term and for ten days thereafter, and any act that he does during said
time that the clerk could have done is valid.
Vacancy, how filled formerly : 14 Ga., 596. Same rule where the Sheriff is appointed
by the Court: 46 Ga., 388.
§264. (252.) (258.) How long such appointee holds. If, by the expira-
tion of said time, there is no one else to act as clerk, said last men-
tioned apointee may continue as such until there is an appointment
or election ; and any appointee or other person lawfully discharging
said duties shall continue to do so until there is an election and quali-
fication.
§265. (253.) (259.) Oath of cleric. The clerks, before entering upon
the discharge of their duties, whether appointed, elected, or such by
operation of law, must, besides the oath required of all civil officers
(unless already taken,) take and subscribe to the following oath:
" I do swear that I will truly and faithfully enter and record all the
orders, decrees, judgments and other proceedings of the Superior Court
of the county of , and all other matters and things which by law
ought by me to be recorded ; and that I will faithfully and impartially
discharge and perform all the duties required of me, to the best of my
understanding. So help me God."
When said oath is taken by the Ordinaries, or their deputies, acting
in a certain contingency as Clerks of the Superior Court, they may
take it before any person authorized to administer an oath, and enter
it on the minutes of the Superior Court.
§266. (254, 255.) (260.) Must give bond and may appoint deputy, Act oittdv,
They also shall at the same time, (except those appointed by the Act of isn.
Judges of the Superior Courts and those so by operation of law,) execute Act'ofisai
a bond in the sum of three thousand dollars, with good security. --', c. p. 70.
They shall have the power to appoint a deputy or deputies, and may
require from them bonds, with good security, who shall take the same
oath as the clerks do before entering upon the discharge of their duties,
and whose powers and duties are the same as long as the principal con-
tinues in office, and not longer, for the faithful performance of which
they and their securities are bound.
His bond is not for him as administrator : 55 Ga., 314. Process signed by deputy
clerk is as valid as if signed by the principal clerk: 11 Ga., 178. So also is a fi. fa.
issued by the deputy, although there is no seal to it: 40 Ga., 423. The deputy niay
administer an affidavit in forma pauperis : 26 Ga.. 620. Administration granted by the
Ordinary to the Clerk of the Superior Court does not expire when he ceases to be
clerk: 22 Ga., 431. Mandamus against a clerk for not sending up the record to the
Supreme Court: 59 Ga., 374-8. Damages against a clerk on his bond for failing to take
legal bond and security to dissolve a garnishment: 63 Ga., 788.
Clerk's bond: Brandt on S. & G., §453. Parol appointment of deputy clerk is good :
17 Am. D., 795. Process signed by: 26 Am. D., 416.
§267. (256.) (261.) Duties of clerks. It is the duty of the Clerks rfAotoMW
the Superior Court — Act 'oiim,
_ 1. To keep their offices'and all things belonging thereto at the county £ct bnkid,
site and at the Court House, unless impracticable from any cause, when, c. p. 577
by special permission of the Ordinary, it may be kept at some other ap. ^! 850,
5
W PART I.— TITLE V.— CHAPTER III.
Article 2. — The Clerks of the Superior Court.
Act of i85i designated place not more than one mile therefrom, of which public
-_vpp. , 8. na kj ce mus t be given.
Rights of a clerk as against a private citizen making an abstract of the records, with-
out paying clerk's fee : 51 Ga., 395. Section cited, 63 Ga., 788.
\du+* ^„^/£~V-jt^ 2. To attend all sessions of the Courts and keep fair and regular mini
tS y &m u ^ es °^ ^ ne ^ r proceedings from day to day, including a transcript of the
"*^*/^ £ ' Judge's entry on his dockets when not more fully shown in a book kept
for that purpose.
Order granting a rule nisi may be placed on the minutes nunc pro tunc : 52 Ga., 204.
Section cited and referred to : 60 Ga., 51-2.
General Note on the minutes of Court, as to what must be placed on the minutes.
Presentments of the grand jury: 1 Ga., 243. Order making parties should be entered
on : 1 Ga., 355. Rule nisi to set aside a non-suit : 5 Ga., 270. Brief of evidence in mo-
tion for a new trial must be filed, and need not be entered on the minutes: 7 Ga., 436;
8/111. Brief of the evidence agreed upon, entered on the minutes, nunc pro tunc: 10
Ga., 93. Testimony relied on in motion for a new trial must be agreed on by counsel
or approved by the Court: 13 Ga., 403. Brief of evidence need not be entered on the
minutes of Court : 21 Ga., 214. Order for defendant to answer a bill in equity : 11 Ga.,
328. Transcript of the judgment of the Supreme Court entered on the minutes, then
the case stands for trial de novo : 14 Ga., 653. Judgment of reversal placed on the min-
utes, plaintiff can still amend his declaration : 28 Ga., 29. Order directing scire facias
to issue need not be placed on the minutes: 17 Ga., 186. Consent of a party to the
examination of the other party as a witness : 22 Ga., 302. Order appointing a guardian
ad litem entered nunc pro tunc: 27 Ga., 555. Suggesting the death of a party entered on
minutes mine pro tunc: 38 Ga., 444. Nolle prosequi must be entered on minutes : 41 Ga.,
507. Minutes should show the entire proceedings of the Court: 21 Ga., 133. Trans-
scripts of Judge's entries, when orders, verdicts, etc., do not more fully show the ac-
tion of the Court : 21 Ga., 133. Must transcribe those entries showing action in a cause
when that action does not otherwise appear on the minutes : 38 Ga., 444. Record of a
deed on the minutes does not dispense with regular registration thereof: 9 Ga., 440.
Court may change its sentence before its entry on the minutes of Court: 28 Ga., 235.
If facts do not appear on the minutes, the legal presumption is that they do not exist
after three years have elapsed: 42 Ga., 203. See section 3491 of the Code as to amend-
ments of.
Verdict: 94 U. S., 664.
3. To issue and sign (and attach seals thereto when necessary) every
summons, subpoena, writ, execution, process or order, or other paper
under the authority of the Court.
i) Acts of [4. It shall be the duty of said clerks to keep always on hand and
~ ready for use, blanks, with printed instructions for taking interroga-
tories.] (a.)
fr-2 -~ 1 5. To keep in Court, convenient of access, the following dockets, to-
wit : A common law docket of civil cases, in which must be entered by
appearance term the names of the parties and attorneys, the nature of
the action, and the Sheriff's return ; an appeal docket and an equity
docket, in which must be entered all the cases to the respective terms
to which they are returned or stand for trial, together with other en-
tries, as in the case of the common law docket.
A claim docket ; a certiorari and an illegality docket in the same man-
ner. A motion docket for entering all motions to be submitted to the
Court, showing the nature of the motion, and the parties and attorneys
thereto.
A subpoena docket for civil cases, and one for criminal cases, in which
must be entered the case in which the subpoena issues, the date, the
name of witness, for whom issued, and to whom delivered, and any re-
turn of the Sheriff thereon.
In the former must be likewise entered, and in the same manner, the
issuing; of commissions. A trial docket of criminal cases in which
must be entered all the criminal cases in the order the indictments
are found, the nature of the defense, and 'the attorneys for the de-
fense.
1871-;.', p. 55.
PART I.— TITLE V.— CHAPTER III. 67
Article 2.— The Clerks of the Superior Court.
A docket in which must be entered all criminal cases which have
been on the criminal docket for as much as five years without any ex-
isting arrest, and which must be inspected by the Court at least once a
year, that if necessary any case may be retransferred to the criminal
docket. /? « y
Execution docket, and enter therein the names of plaintiffs, their ^^f^/!*^^
attorney, and "the defendants, the amount of principal and interest and Jv-c^Zy/- -£~ a+;
costs; the date, the term to which returnable, to whom and when de- y^r/4/^-^
livered, and by whom and when returned, and an entry of satisfaction /*
or nulla bona, as the case may be, with the dates thereof.
This docket, and not the record book required by par. 6, is the one intended to con-
vey notice of judgment liens in Georgia: Per Woods, J., 7 Fed. Rep., 751.
Duplicates of the common law, appeal and criminal dockets, one for
the use of the bench, the other for the use of the bar, in which last
must be copied from term to term all the entries made in the former.
All appeal cases must be entered on the same appeal docket, and in the
order and at the time received. Divorce cases are first to be entered
on the equity docket, and after one trial are to be entered on the appeal
docket in their proper order from the minutes.
Motion docket is no part of the record : 1 Ga., 355. Bench docket, entry on, no part
of record: 4 Ga., 159; 11/330-1. No fee should be asked in advance for entering a case
on the motion docket: 30 Ga., 938. See old Rule of Court, number 40: 2 Ga., 474.
Clerk's execution docket is admissible as evidence: 30 Ga., 823. Old Rule of Court,
number 39: 2 Ga., 473. Supreme Court will not interfere with the order of business
adopted by the Superior Court, unless there is an abuse of discretion: 25 Ga., 592.
Practice of dispensing witli the calling of the appearance docket disapproved: 37 Ga.,
667,
6. To record in well bound books within six months after the final Acts of i.w
determination of any civil suit, all the proceedings relating thereto. ~ 81 ' p ' 93 ~
Every Clerk of the Superior or City Courts of this State must record
immediately in his book of final records the declaration and pleas in
common law actions, and the bill and answer in equity cases, together
with all petitions, motions, pleas in equity, demurrers, and any and
every other part of the pleadings, in every case, both at common law
and in equity, all garnishments, affidavits, bonds and answers thereto,
all attachment affidavits, bonds and writs of attachment, all claim affi-
davits and bonds, and all bonds given in any judicial proceeding , and
no clerk shall allow any of such papers to be taken from his office before
recording them as herein required, and such record shall be a part of
the final record of the papers required by law to be made, or all such
record, as the case may be. The clerk shall, if any subsequent paper
in the cause is recorded, make a reference at the foot of the record
hereby required, to the page where such subsequent record may be
found, and shall also state the case in the index to the book of record,
and enter the numbers of the pages on which the same is to be found.
And where any paper so recorded becomes lost or destroyed, the same
may be substituted by a certified copy thereof from the Clerk of the
Court ; but there shall be no tax charged or collected for any such copy
if the loss of the same is caused by or results from any negligence or
fault of the clerk. Any clerk who shall fail to discharge the duties
hereinbefore set forth, is subject to be fined by the presiding Judge,
during term time, for a contempt, and of his own motion, whenever
said Judge shall discover that said clerk has failed to discharge the
duties herein mentioned; and it shall be the duty of the Judges of the
several Superior Courts to give this law specially in charge to the
grand juries, and to require them to inform the Court whether or not
the clerk has performed the duties specified as aforesaid : Provided, nev-
ertheless, that the clerks shall not be punished for contempt, under this
section, until after the paper or papers required to be recorded have
68 PART I.— TITLE V.— CHAPTER III.
Article 2. — The Clerks of the Superior Court.
been filed for three months : provided, that the provisions of this section
shall not apply to cases dismissed and settled before said record is made.
This does not include the evidence given in on the trial: 38 Ga., 593. Failure to
record does not affect the parties : 50 Ga., 381.
The failure of the Clerk to keep this book, or to record a judgment, does not affect
the constructive notice given by a judgment entered by plaintiff's attorney on the
declaration: Per Woods, J., 7 Fed. Rep., 751.
7. To keep well bound books for recording all deeds, mortgages, and
other liens and bills of sale separately.
Failure to index the record does not affect the actual registration, as notice : 50 Ga.,
.331.
8. To have properly stamped and labeled, and numbered or lettered,
if required, all the books herein enumerated, and to keep for each (ex-
cept the dockets called by the Court,) a proper index, and to supply
..any of said books or indexes needed, and to transcribe the contents of
..any books of record which may be in a dilapidated condition.
As to index : Wade on Notice, §164-174.
9. To keep all the books, papers, dockets and records belonging to
their office with care and security, and the papers filed, arranged, num-
,bered and labeled, so as to be of easy reference.
Right of citizens to inspect records: 32 Am. R., 219. For what purposes: 32 Am.
R., 219.
10. To procure and preserve for public inspection a complete file of
.all newspapers in which their advertisements appear, and have them
bound in volumes of suitable size to be deposited and kept with their
other records.
11. To keep at their offices all publications of the laws of the United
: States furnished by the Governor, and the laws and journals of this
.State, all statute laws, digests, this Code, the Supreme Court Reports,
and all other law books, or other public documents distributed to them
.for the public convenience.
12. To procure, within thirty days after their qualification, (if not
.already done,) a substantial seal of office, with the name of the Court
and county inscribed thereon.
13. To make out and deliver to any applicant, upon payment of
legal fees, a correct transcript, properly certified, of any minute, record
or file of their office.
14. To make out transcripts of the records of all cases for the Supreme
r 'Court, as the laws require.
1 15. To make a minute on all conveyances or liens of the day left for
/ -42706. record, and the day recorded, to be signed officially, which shall be evi-
dence thereof, and to attest deeds and other written instruments for
registration.
The Clerk of the Superior Court of the county where the deed is attested and
where it is to be recorded can authenticate with one or more witnesses for record : 26
Ga., 406.
16. To administer all oaths during term time required by the Court,
and to record all oaths required by law.
17. To perform such other duties as are or may be required by law,
or as necessarily appertain to their offices.
§268. (257.) (263). May administer oaths. The clerks of said Courts
c C p°57r 9 ' have authority:
1. To administer oaths and take affidavits in all cases permitted by
law, or where the authority is not confined to some other officer.
Section cited: 47 Ga., 96.
2. To receive the amounts of all costs due in the Court of which they
are clerks, and other sums whenever required to do so by law, or order
of the Judge, and not otherwise.
PART I.— TITLE V.— CHAPTER III.
69
Article 3. — Receivers.
3. To advertise under the same rules and restrictions as the Sheriffs.
4. To exercise such other powers as are or may be conferred upon
them by law.
They have no authority to collect money on judgments or fi. fas. : 31 Ga., 359.
5. To demand and collect in advance their fees for recording deeds. Acts off 875,
(258.) '(264.) Failure of duty. Any such clerk failing to perform
any duty, or to exercise any authority when required, set forth in the
two preceding sections, is subject to be fined for each offense by the
presiding Judge, during term time, as for a contempt, on information
of any party aggrieved, of which he shall have notice in writing.
§270. (259.) (265.) Clerk subject to rule.. If any of such clerks receive
any money on any suit or judgment from their Courts, or otherwise, and
do not faithfully account for it, they are liable to rule as Sheriffs are,
and they and their sureties are likewise liable on their official bond.
Section cited and damages recovered against for failure to take a legal bond : 63 Ga.,
786-8.
§271. (260.) (266,) Subject to rule after out of office. They are subject Ac t of isi3,
to the rule and order of their respective Courts after their retirement c -p- m -
from office, as Sheriffs are.
Section cited and damages recovered against the clerk for failure to take a legal bond :
63 Ga., 786-8.
§272. (261.) (267.) May be removed. They are subject to be removed
from office by the Judge of the said Court for any sufficient cause, in-
cluding incapacity or misbehavior in office, charges for which must be
exhibited to the Court in writing, and the facts tried by a special jury,
such clerk being entitled to a copy of the charges three days before
trial.
§273. (262.) (268.) Clerk's office subject to examination. Their offices are
subject to an examination by the grand juries, their committees, or any
person whom they may specially empower to report to the same, or a
succeeding grand jury, or to the Judge of the Superior Court, who shall
submit in writing the condition of said offices, and specify any neglect
of duty, or anything done wrongly or corruptly by such clerk.
General Note. — The certificate of the clerk is the best evidence of the filing of the
paper: 15 Ga., 483. Parties should not take original papers out of the office: 30 Ga.,
674; see, also, new Rules of Superior Court, No. 18. Damages against aCle k for fail-
ure to perform, or improperly performing, his duties : Collins et al. vs. McDaniel and
Strong, (Pamph.. Sept., 1880, p. 40). Damages on a bond for a ministerial act : 63 Ga.,
786-8. County Court clerk may practice law, and when his ministerial act is valid : 55
Ga., 283. No private citizen can make an abstract from the records of the Superior
Court for publication without paying the clerk his fees : 51 Ga., 397.
General Note on Clerks. — Action against recorder for imperfect search : 33 Am.
P., 757; 2 Thomp. Neg., 827. Action for official neglect dies with person: 19 Am.
D., 755. Liability of recorder of deeds for mistake in record: Cooley Torts, 384.
Negligence of: Shear. & P., 347; Whart. Neg., §297. Mistake in record of deed,
causing damage to grantee, clerk liable: 2 Thomp. Neg., 827; but clerk is under no
obligation to see to validity of deed presented to him for record: 2 Thomp. Neg., 827.
Liable for mistake in certificate of search to person who procures certificate, not to
subsequent grantee : 2 Thomp. Neg., 827. For erroneous certificate of search: Cooley
Torts, 389. Liability of clerk of Court for misfeasance or non-feasance in discharge of
official duties : Cooley Torts, 392.
ARTICLE III.
RECEIVERS.
Section.
274. Receiver may be appointed, when.
275. Funds invested pending litigation.
276. Duties and liabilities of receiver.
Section.
277. Receiver required to give bond.
278. Receivers of banks, etc.
278. (a.) Duties of receivers of railroads.
§274. (265.) (271.) Receiver, when an officer of the Court. When any
fund or property may be in litigation, and the rights of either or both
70 PART I.— TITLE V.— CHAPTER III.
Article 3. — Receivers.
Act of 1855 parties cannot otherwise be fully protected, or when there may be a
-6, p. 219. f un( j or property having no one to manage it, a receiver of the same
||^9^3i49, m ay be appointed, (on a proper case made,) by the Judge of the Supe-
rior Court having jurisdiction thereof, either in term time or vacation,
and such receiver is an officer of said Court.
May sue, by decree, or order of the Court: 8 Ga., 354-8; 48/41. And be so
sued : 57 Ga., 22-3. Attaching and imprisoning any party refusing obedience to, and
enforcing delivery of property or fund to receiver appointed in vacation ;. form of
attachment for contempt : 34 Ga., 162. Is an officer of the Court, and is not subject to
garnishment : 11 Ga., 413. Receiver of railroad when not subject to suit for negligence
by one employee to another while in his service : 55 Ga., 481. May rule receiver after
bill is dismissed, and compel him to surrender the fund: 61 Ga.. 437. Receiver ap-
pointed, but injunction refused where no insolvency alleged i 53 Qa., 440. Where a
receiver to supersede an assignee in a bank case was refused : 59 Ga., 271. Former wife
having a receiver appointed over husband's property : 55 Ga., 590.
See note to cognate sections for general authorities.
§275. (266.) (272.) When fund may be invested. The presiding Judge,
in his discretion under the law, may order any funds in the hands of a
receiver, or any other officer of Court awaiting the determination of a
protracted litigation, to be invested in State bonds, as executors and
administrators are authorized to do.
§276. (267.) (273.) Duties of receivers. The receivers so appointed
must discharge their trust according to the order or decree of the Courts
appointing them, and are at all times subject to their orders, and may
be. brought to account and removed at their pleasure.
Power of. as to existing contracts : 53 Ga., 168. Existing suits not affected by the
rescission of the appointment of a receiver : 52 Ga., 417.
Removal : High on Rec, §820. " Order," etc. : High on Rec, §177.
§277. (268.) (274.) Receivers may he required to give bond. The Judges
of the Superior Courts may, in their discretion, require such receivers
to give bonds conditioned for the faithful discharge of the trust reposed,
and if they require them, they must fix the amount and the sufficiency
of the security, and also regulate their compensation.
Whether the security required of a receiver is sufficient is a matter of discretion
with the Court: 11 Ga., 587. They should generally be required to give security, yet
there are exceptions : 23 Ga., 31.
Bond: High on Rec, §118. Liability of sureties: High on Rec, §127-133; 16 Wal.
196. Compensation: High on Rec, §781.
§278. (269.) " (275.) Returns of receivers, how made. Receivers of banks
§1487. or other corporations hereafter appointed by any power, are amenable
to, and must make their returns to, the Superior Court of the county
where they reside at the time of the appointment:
Sales by the receiver should be confirmed by the Chancellor, generally : 61 Ga., 267.
Purchases by receivers at their own sales are voidable : 46 Ga., 477. As to their power
to sell where they do so by decree in equity : 57 Ga., 501. When their sales should
require confirmation : Smith vs. Coker, (Pamph., Sept., 1880, p. 10).
§278. (a.) Duties of receivers of railroads. In all cases where the business
Acts of of any corporation operating a railroad, either wholly or partially in
1876, p. 122. ^{q State, shall, by an order or decree of any Court, be placed in the
hands of a receiver for the benefit of the creditors or stockholders of
said corporation, it shall be the duty of said receiver to apply the in-
come of said railroad to the payment of the incidental expenses neces-
sary to the carrying on said business, which shall include the wages of
employees, wood, cross-ties, and other material furnished, and which
may be necessary for conducting said business, and keeping the property
in repair, and the damages which may arise from the loss or injury to
goods, wares and merchandise received by said road for transportation,
and for injuries to persons and property, caused by the running of the
cars on said road, and for which said road is now liable as common car-
riers by the laws of this State ; and a lien is hereby created on the gross
PART I.— TITLE V.— CHAPTER IV.
71
The County Court and its officers.
income of said road, while in the hands of such receiver, in favor of such
creditors or claimants, superior to all other liens under the laws of this
State. If said receiver should be removed, or a vacancy occur in said jj^f 8 lof
office, and a successor be appointed, it shall be his duty to pay the liens uss, m. v '
herein provided for, according to their date, out of any funds in his
hands as such receiver, whether sugh liabilHv^ccurred before or after
his appointment. fl£k^^£^$p £T A ■ ■ ,jfr<&-y,**~** -/? *^*° ^° ***
CHAPTER IV.
THE COUNTY COURT AND ITS OFFICERS.
Section.
279. County Judge, his appointment, etc.
279. (a.) Privileges of Judge.
279. (b.) Clerk of County Court.
280. Vacancies, how filled.
281. Judge's salary.
282. Civil jdrisdiction.
283. Special jurisdiction.
2*3. (a.) Garnishment.
2^3. (b.) Garnishees.
283. (c.) Practice.
283. (d.) Trial.
283. (e.) Sessions.
2F3. (f.) Jurisdiction.
284. Suits, how commenced.
284. [a.) Claims, etc.
284. (b.) Process.
285. Trial, continuance, amendments.
286. Appeals.
287. Certiorari in civil cases.
287. (a.) Appointment of bailiff.
288. Bailiff, his oath and bond.
289. Special bailiffs.
290. Process, by whom served.
291. Docket of civil cases.
292. Executions, when and how issued..
Claims and illegalities.
Powers of Judge.
Jurisdiction as to tenants, etc.
296. Costs in civil cases.
297. Criminal jurisdiction.
Juries, how procured.
293.
294.
295.
298.
(b.) Offense beyond jurisdiction. 0U*j£f*d»^* " /[//
Section.
299. Proceedings without indictment.
299. (a.) With indictment.
'299
299. (c.) Cases transferred
299. (d.) Trial by jury.
299. (e.) Criminal jurisdiction.
299. (f.) Solicitor.
300. Costs in criminal cases.
301. Certiorari in criminal cases,
302. Certiorari, how obtained.
303. Judgment on certiorari.
304. Docket of criminal cases.
305. Judge's power as to jail and contempts
306. Judge shall act alone.
307. Attendance of witnesses.
308. Laws applicable to Court,
309. Certiorari to verdict of jury.
310. Criminal process, how directed.
311. Bailiff's sales.
312. Office of Judge, where kept.
313. Other duties of Judge.
314. Cases transferred.
315. Costs, how collected.
316. Salary, when fixed.
317. Judge may grant new trial.
317. (a. i Certiorari, etc.
317. (b.) Sections applicable.
317. (c.) Court, where held.
317. (d.) Extent of Act.
317. (e.) Repealing clause.
*fyf*—? a '
[The law as to County Courts, from 270 to 335, inclusive, repealed by
Constitution of 1868, Article V., section 16, and the law as to the Infe-
rior Court, from 356 to 363, inclusive, repealed by Constitution of 1868,
Article V., section 14.] * v
§279. County Judge, his appointment, qualifications and term. [The Gov- ^^Ce^ trCt-* v
ernor of the State of Georgia, by and with the advice and consent of-. #ju&J!l!&m~j£i*
the Senate, shall appoint for each county in said State of Georgia, ^T~ «£*^
(except Walton,) a suitable person, not less than twenty-one years of /«#'*'"' j7%
a°je, and a resident of the county for which appointed <f3»yearsimme-/^^ J6,
diately before his appointment, to act as a County Judge, to have suchrjfr J?JZj&.
jurisdiction as shall be hereinafter set forth ; said person so appointed "y' *
and confirmed, to act as such County Judge for four years from the time /JST'*"**
of receiving his commission, to be delivered to him by the Governor
aforesaid, and qualifying thereunder, and to continue in office until his
successor is appointed, commissioned and qualified in the same way;
so long as the law of this chapter remains in force, the said office of
County Judge shall be filled as aforesaid, and the term of office is for
four years : Provided, however, that the law of this chapter shall not take
effect so as to allow a County Judge to be appointed for any county
until the grand jury thereof shall, by a majority, so recommend.]* (a.)
§279. (a.) Judge's privileges. If the person appointed County Judge Acts of 10
be a member of the bar, he shall be allowed his privileges as to the -9 ' p ' u>
practice of law in any Court except his own.
*This section amended by Act of 1878-9, p. 71.
72 PART I.— TITLE V.— CHAPTER IV.
The County Court and its officers.
§279. (b.) Clerk of County Court. He shall be the clerk of his own
Acts of 1878 Court, but may, by order on the minutes, appoint a deputy clerk, to be
si* . /'/V 3 °* paid out of his compensation on terms agreed on by them, which ap-
/fiZ+V~&y££y ^* - ^i8intment shall be published once in the paper which publishes the
J+^ /f^tfr- j % /&*fT county advertisements.
/ §280. Vacancies, hoiv filled, [If a vacancy occurs after the first ap-
(b) Acts of pointment, from any cause, in said office of County Judge, the Gov-
l%]~ 2, P ' errior of the State for the time being shall fill the same as in case of
Judges of the Superior Court, and shall also submit his appointments
for confirmation to the Senate, as in case of Superior Court Judges, and
all the rules of law and requirements of the Constitution now in force
as to the appointment of Judges of the Superior Court shall apply to
said appointment of County Judges, so far as the same can be applied
under the law of this chapter.]* (b.)
§281. Judge's salary, and how paid. [Said County Judge, when so
(c)^ Acts of appointed and commissioned, shall receive a salary as follows : The
289." Act of grand jury of each county at its spring term shall, after a careful exam-
15th Feb., ination, assess and declare what amount shall be paid to said County
Judge for his services as Judge in criminal matters, and for his servi-
ces in attending to such county business as may be entrusted to him
by the provisions of this "chapter, said sum so assessed to be levied by
the Ordinary of each county as provided in this section, and the Ordi-
nary of each of said counties, when he levies the tax for county pur-
poses, shall at the same time levy the sum aforesaid hereby allowed
to the County Judges, which shall be collected with the other county
taxes, and after being paid over to the County Treasurer of each county,
paid over to the said County Judges, and if any of said County Judges
shall die or resign his office, or be otherwise removed from his office, 4
then such pro rata part of his aforesaid salary shall be paid him as he
is justly entitled to. If no salary shall be recommended by the grand
jury of any county, then the County Judge shall be authorized to re-
ceive and retain as his compensation the costs prescribed in this
chapter.] (c.) Provided, nevertheless, That the said salary, when once
Acts of fixed, shall not be increased or diminished during the term of office of
18/8-9, p.5i. ga ^ Q oun ty Judge, and said Judges shall, during the remainder of
their present term, receive the same salary per annum as that now
fixed for the current year.
§282. Jurisdiction of County Court. Every County Court in this State
Acts of 1878 shall be a Court of record, and have jurisdiction throughout the county,
-9, p. 132. n n J & J1
i ' p / as follows :
fjtri> n^c^Ju^4sf^^t>. 1. The jurisdiction of the County Courts shall extend, in the county
/JJ. 2.2--*?. town, district, or districts, to all civil cases of contract or tort (save
when exclusive jurisdiction is vested in the Superior Court) where the
principal sum claimed, in cases of contract, or damages in cases of tort,
does not exceed $300.00, and over the remainder of the county when
the principal sum, as aforesaid, does not exceed $300.00, nor is less than
$50.00.
2. To try all offenses committed in the county for which the offender
is not punishable capitally or by imprisonment in the penitentiary,
which criminal jurisdiction shall be exercised as hereinafter set forth.
3. The Judge of the County Court shall have all the powers enu-
merated in sections 294 and 295 of this Code; and all the powers of
a Justice of the Peace, as to issuing warrants for criminal offenses, mak-
ing preliminary examinations under warrants, and commiting or
binding over the accused to the proper Court.
4. The jurisdiction of the County Court shall be subject to, and reg-
*The mode of electing Judges of the Superior Court changed by Const, of 1877.
PART I.— TITLE V.— CHAPTER IV.
73
The County Court and its officers.
ulated by, sections 3410, 3413, 3416 and 3417, and by all the sections from
3402 to 3409, inclusive, of this Code.
5. When the Superior Court has first acquired jurisdiction of any
misdemeanor, no County Court shall have jurisdiction thereof while it
is pending in the Superior Court.
6. Any person desiring to bring his claims within the jurisdiction
of the County Judge may do so by remitting or releasing so much of
his claim as will bring it within the jurisdiction aforesaid of the
County Judge.
May release so as to give County Court jurisdiction : 57 Ga., 253-6. In a case before
a Justice of the Peace, jurisdiction cannot be conferred by entering a credit without
debtor's consent: 58 Ga.,407.
Superseded by Act of 1878-9, p. 132.
(a.) Jurisdiction in garnishment and other cases extended. The
County Courts of this State shall have jurisdiction in all cases in gar-
nishment, as well when the debt of the garnishee to the defendant shall
exceed, as when it shall fall short of, the jurisdictional amount of said
Courts. And in all cases of suit on bail or attachment, claim or other
obligations, or bonds given by parties to any proceedings issued from,
or had in said Court, although the penalties of said bonds may exceed
the jurisdiction of said Court by being in double the sum sworn to,
attached, or of the executions issued, or property levied on : Provided,
the original cause of action upon which such bonds or obligations were
had, or taken, did not exceed the jurisdiction of said Court.
County Judge can issue and dispose of distress warrants to any amount: 60 Ga., 623-
§283. (b.) Garnishee residing in different county — summons where return-
! able. In all cases in the County Courts of this State, where any of the
persons sought to be garnished reside in a different county from the
one where suit is pending, or in which judgment was obtained, the
I summons of garnishment may be made returnable to the County
I Court of the county of the residence of the garnishee : Provided, that in
the event there be no County Court established in the county of such
garnishee's residence, then the same may be made returnable to the
Superior Court of the county of the garnishee's residence, and in all
other respects to be governed by the regulations prescribed in section
3537, or section 3538, of this Code.
§283. (c.) Practice. The practice and modes of procedure in the
County Court, and the effect of its proceedings, records and judgments
shall be the same as in the Superior Court, from the filing of the origi-
nal suit to the final process and proceedings to enforce judgment
thereon, and upon claims, illegalities, or other defenses to the proceed-
ing of the executions of the County Court, except as hereinafter pro-
vided.
§283. (d.) Mode of trial. The trial and judgment in said Court shall
be by the Court, without a jury, in all civil cases, and in all criminal
cases, where a jury trial is not demanded by the accused, when called
on to do so.
§283. (e.) Session. Said Court shall hold monthly and quarterly ses-
sions, the times of which shall be established by the Judge thereof, ad-
vertising his appointment thereof weekly for four successive weeks in
the paper wherein the county advertisements are published, and in
like manner he may change such times. But where the times of such
sessions of any County Court are now fixed by law or lawful authority
they shall continue until changed under this section.
§283. (f.) Jurisdiction at different sessions. At the monthly sessions,
said Court may entertain jurisdiction of issues on distress warrants and
of suits in which the amount of principal or of damages claimed does
not exceed one hundred dollars, and at the quarterly sessions it shall
Acts of
1875, p. 90
8295. .
Acts of 1875,
p. 90.
§295.
Acts of 1878
-9, p. 132.
Acts of 1878
-9, p. 132.
Acts of 1878
-9, p. 132.
Acts of 1878
-9, p. 132.
74 PART I.— TITLE V.— CHAPTER IV.
The County Court and its officers.
have jurisdiction of issues on distress warrants and suits wherein such
J.Zt-3^ amount is not more than three hundred dollars, claims, illegalities and
other defenses to the proceeding of executions from said Court shall be
tried at such session as had jurisdiction of the suit whence the execu-
tion issued, or the amount of principal originally named in the execu-
tion.
§284. Suits, how commenced. In suits to the monthly session or term,
Acts of m8 the original petition shall be filed with the Clerk of the County Court
-9, p. 183. fiff; een cL a y Sj anc [ service thereof shall be made ten days before said
session, and such cause, unless continued, shall be tried at the first term
after suit begun.
Need not attach a copy of the claim sued on, but may amend by adding such copy :
A 9 ct « o/ 3 f 7 8 58 Ga., 138-9.
§284. (a.) Claims and illegalities, when tried. When an affidavit of
claim or illegality, or other defense to the proceeding of an execution
shall be made, the case arising thereon shall not be as against the
plaintiff in execution or his assignee forced to trial, until he or his at-
torney shall have had ten days' notice of such defense being made,
which notice shall state that the party defending has filed his defense
to the proceeding of such execution, shall be signed by such defending
Acts of P ar ^y or his attorney, and its service proved as the service of notice to
1877, p. no. produce papers.
§284. (b.) Service of process in different counties. In all cases suits may be
brought in the County Courts of this State against parties residing in
different counties, under the same rules and regulations as to second
originals, etc., as are practiced- in-'the Superior Courts, and it shall be
lawful for such second originals, processes, summonses, attachments,
or other papers requiring service, to be served and returned by the
Sheriff or his deputy, or any lawful constable of the county to which
said papers may be sent for service, having no County Court estab-
lished therein: Provided, nevertheless, that in cases where the law re-
quires the first original to be served by the Sheriff or his deputy, the
second original shall be served in like manner.
§285. Hearing, continuance, amendments. [When the time specified in
( f ) Acts of said summons shall have arrived for the hearing, trial and judgment
210. ' ' of the cases specified, the said County Judge shall proceed to hear and
determine the said cases as aforesaid, as Justices of the Peace hear and
determine matters submitted to their jurisdiction, unless the case is con-
tinued, which continuance may be allowed for the same grounds and
on the same terms as cases are continued in the Superior Courts of this
State, for a period not exceeding ten days ; said summons may be an-
swered to and defended as suits in the Justice's Court by defendants,
and either party may amend his pleadings in accordance with the gen-
eral law of amendments and the nature of the proceedings.] (f.)
No declaration need be filed in an attachment case in the County Court if amount
within Justice's jurisdiction : 58 G-a., 323. Need not plead under oath either in lower
Court or on appeal therefrom: 59 Ga„ 774.
Appeals. [If either party is dissatisfied with the judgment of
i87i-2 Cts ° f ^ e County Judge, and the principal sum claimed, or damages claimed,
290-l' PP ' exceeds fifty dollars, said party may enter an appeal from such judg-
ment within four days, under the same rules and regulations as are
^provided for appeals in this Code : Part 3, Title 5, Chapter 1. When
such appeal is entered said County Judge shall transmit the same,
and all papers connected with the case appealed, to the Clerk of the
Superior Court of the county in which the case was tried, at least five
days before the next term of the Superior Court, there to be tried and
PART L— TITLE V.— CHAPTER IV.'
ii>
The County Court and its officers.
disposed of as provided for the trial of appeals in the said Chapter 1,
of Title 5, in Part 3 of this Code.] (g.)
In Justice of the Peace Courts, where a set-off is plead for over fifty dollars, but
the suit is for an amount under that, still it is appealable : 54 Ga., 122. Taking a bond
by a County Judge is a ministerial and not judicial act: 49 Ga., 284.
§287. Certiorari in civil cases. [If the judgment of the County Judge W Acts of
has been rendered in a case where the principal sum or damage claimed 291. ' v '
does not exceed fifty dollars, either party may sue out 'a certiorari to his
judgment, in conformity to the Constitution of this State and the pro-
visions of this Code regulating certioraries ; and in his petition for certio-
rari may state all the decisions and judgments complained of as erro-
neous, from the beginning to the end of the case. All the rules provided
in this Code, for preparing, answering, hearing, and disposing of certio-
raries from Justice's Courts, shall apply to the said certioraries sued out
to the decisions and judgments of the County Judge, which may be
disposed of by the Judge of the Superior Court, in accordance with
said rules, in vacation or at a regular term of the Superior Court, [h.]
§287. (a.) Appointment of bailiff. There may be a bailiff of the County Acts of 1878
Court, appointed by the Judge, for and during his pleasure; according" ' p "
to the provisions of section 288, and 289 and 290 of this Code are made
applicable to said Court and the officers named therein. ~
§288. Bailiff, his appointment, oath and bond. [Said County Judge may fiL^®* 8 of ^y: "^~
appoint an officer to serve all processes issued by him, and all his writs, 290. "' v y^^/Z^-f/c^,
and execute all orders issued by him, from the resident citizens of the
county where he is to act, to be called bailiff; at any time taking from
him the same kind of a bond and se curit y as is required of constables,
except it shall not exceed the sum ojSS^hundred dollars, and adminis-/^/^ «/£-.
tering to him the same oath administered to constables.] (i.)
§289. Special bailiffs. [In cases of emergency, when more than one ( .i) Acts of
bailiff is necessary to attend to the business of the County Judge, or 290." ' P *
there is no regular bailiff, or he is sick or absent, or for any other reason
he cannot conveniently attend, said County Judge may appoint, by order
on his docket, a special bailiff, without taking from him bond and
security, but in all cases requiring the usual oath administered to con-
stables. These bailiffs, when appointed, shall have the same authority
to serve processes, summonses, orders and other legal papers of the County
Judge, over the entire county over which the County Judge has juris-
diction, as constables have in their several districts, and shall, for the
county in which they are appointed, have all the rights of a constable,
and be liable to perform all the duties of a constable.] (j.)
Agent of plaintiff cannot act as special bailiff by appointment: 52 Ga., 342.
§290. Who may serve process. [The Sheriff of the county or his deputy, Sth^Feb*
or the regularly appointed bailiff of said County Court, may serve ana 1873.
execute all processes returnable to, and all judgments rendered by, said
Court, and any process of said Court.] (k.)
Service by a constable deputized by a Sheriff is valid : 61 Ga., 272.
§291. Office and dockets, etc. The County Judge shall keep his office i§i4 C p. of
and papers at the county site, advertising the place thereof as Sheriff's 292.
sales are advertised; he shall keep a docket of all civil cases and one-Jsfp/Vse.
for all criminal cases before him or his Court, with proper memoranda
of the proceedings thereon ; an execution docket, on which all execu-
tions issued from his Court shall be stated, and entries made as re-
quired upon the clerk's execution docket in the Superior Court ; and
a book of minutes in which all the proceedings of the Court shall be
kept, noting the distinction between the proceedings of the monthly
and of the quarterly and of special sessions. All the pleadings and
original papers in each case shall be carefully labelled and kept of file,
but shall not be required to be recorded.
76 PART I.— TITLE V.— CHAPTER IV.
The County Court and its officers.
§292. Executions, when and how issued. [So soon as judgment is entered,
Sri^r* ° f sa ^ County Judge is compelled to issue an execution upon such judg-
29i. ' ' ment, unless an appeal is taken, or a certiorari sued out, as hereinbefore
provided ; which execution shall be in the usual form issued by Justices
of the Peace.] (1.)
§293. Claims and illegalities. [When such execution shall be levied
(m) Acts of on property to which a legal claim is asserted, said claim shall, (con-
29i!~ 2 ' P ' forming to the law regulating claims, as provided in sections 4100 and '
4101 of this Code,) be disposed of by said County Judge instead of a
jury, as heretofore required ; but the same right of appeal and certiorari
shall exist as in cases provided for in sections 286 and 287 ; and if any
affidavit of illegality is taken to the proceeding of said County Judge,
or to the execution of his judgments and orders, the same shall be
returned to him for disposition, as cases of illegality are returned to
the Superior Court, with the same right of appeal and certiorari as is
herein allowed in claims and other cases. No claim case or illegallity
shall be disposed of until the County Judge has given ten days' notice
of the time and place of hearing the same, to the parties interested, or
their agent or attorneys at law. (m.)
§294. Powers of the Judge as to witnesses, papers and contempts.. [The
(n) Acts of County Judge shall have the power to procure testimony from witnesses
291-2. ' PP ' in his county to compel production of papers, and to procure testimony
by interrogatories and commission, as Judges of the Superior Courts,
and shall have the same general power to issue any notice, writ, order
and processes necessary to dispose of matter pertaining to his jurisdiction
as are granted to Judges of the Superior Courts in their jurisdiction,
and shall be allowed to exercise the same authority as to contempts of
officers and others, by fining not exceeding one hundred dollars, and
imprisonment not exceeding ten. days; and whatever imprisonment is
inflicted by said County Judge, or shall be necessary to enforce his
orders and sentences, shall be in the county jail of the county in which
he is Judge, over which, to the extent of his jurisdiction, he shall have
as much control as a Judge of the Superior Court.] (n.)
§295. Jurisdiction as to tenant, intruders, etc. [Besides the civil cases
(o) Acts of and ' matters hereinbefore mentioned, said County Judge shall have
222. Acts of jurisdiction to hear and determine according to law all applications for
1873 Feb " ^ ne ev i c ^i° n of intruders, tenants holding over, partition of personal
property, for the trial of possessory warrants, to issue and dispose of
distress warrants, to issue attachments and garnishments, to foreclose
mortgages on personal property, liens, to attest deeds and other contracts
for registry, to administer oaths of all sorts, and to exercise the same
powers as was given to the County Court in relation to attesting,
approving, enforcing and setting aside Court contracts, as described in
this Code. The County Judge shall have authority to grant writs of
habeas corpus and determine the same, as noiv by law is given to Ordina-
ries in this State. The said County Judge shall allow parties interested
to file their defense, in writing, under oath, as all defenses in all cases
of a civil nature before said County Judge must be filed, and proceed to
give judgment only when such notice and opportunity for defence is
offered ; and the same rights of certiorari shall exist as to these sujects
of the County Judge's jurisdiction as to other civil cases mentioned in
sections 287 and 293, and the same rights of appeal, when the remedy
by appeal is applicable, shall exist in relation to the matters specified
in this section as is provided in the said sections 286 and 293.] (o.)
Need not file a declaration in an attachment case in the Justices of Peace Courts : 58
Ga., 323. May issue and dispose of distress warrants regardless of amount involved:
60 Ga., 623. Under this section, County Judge may issue a distress warrant just as a
Justice of the Peace can: 61 Ga., 12 : 50/123. •
PART L— TITLE V.— CHAPTER IV.
i i
The County Court and its officers.
§296. Fees and costs in civil cases. [The entire Court costs in cases over
one hundred dollars, exclusive of Sheriffs or bailiff's fees, shall be four
dollars, and where a less amount is sued on, the costs in each case shall
be two dollars ; and for other matters submitted to him in the preced-
ing section, the fees and costs of said County Judge shall be as follows :
For a case in which discharge or specific performance is prayed, or other
like case not claiming money, two dollars ; for the foreclosure of mort-
gages, the partition of personalty, the removal of intruders, or tenants
holding over, for the certiorari of any case, for trial of possessory war-
rants, and the like, three dollars ; for every Court contract which he
may approve, one dollar; and where no provision is made for fees and
costs, then his fees and costs shall be such as shall be assessed for his
services by a Judge of the Superior Court.] (p.)
§297. Criminal jurisdiction and proceedings. [Said County Judges shall
also have jurisdiction and authority as Justices of the Peace in this
State, upon affidavit made before them, to issue criminal warrants — to
be in the form, both as to affidavits and warrants, prescribed in sec-
tions 4618 and 4619 of this Code — against all persons accused of crimes
and misdemeanors. In cases which, upon an examinaton — which ex-
amination they are authorized to make — appear to be felonies, said
County Judges shall commit the party acccused to jail for safe keeping
so that his presence may be secured for trial before the proper tribunal,
unless the case be bailable by a Justice of the Peace, when the accused
may, on complying with the law respecting bail, be bound over to
appear before the proper Court for the trial of such a case and answer
to the matters charged against him. If the felony be bailable as afore-
said, and the defendant cannot give the bail, said Judge shall commit
him to jail for safe keeping so that his presence may be secured for
trial before the proper Court to try such cases ; when the felony brought
before him is bailable as aforesaid, said Judge shall have the right to
admit to bail at any time until the Court which has jurisdiction of
felonies shall meet. In cases which do not upon examination appear
to be felonies, said County Judges shall have full authority and juris-
diction, as hereinafter provided, to hear, determine, sentence, decide
and adjudicate upon the same, unless the party accused shall, in a
writing signed by him, demand an indictment by a grand jury of the
county in which the misdemeanor was committed. In that case, the
County Judge shall require of the defendant demanding such indict-
ment good bond and security to appear and answer to such indictment,
if found, at such time and place and before such tribunal as the said
indictment may be tried. If no such bond and security is given, then
said County Judge shall commit to jail for safe keeping the person so
accused and demanding such indictment, until the proper grand jury
can act upon the charge and until the case can be legally determined.
If an indictment is found by said grand jury, the Judge of the Supe-
rior Court may, if he chooses so to do, order said indictment to be re-
turned, with all the papers pertaining to said case, to the County Judge,
to be disposed of by him, after ten days' notice to the party accused
and the prosecutor, as others are disposed of by him in which no indict-
ment has been demanded. In cases which do not appear to be felonies,
and in which no indictment is demanded by the party charged with a
misdemeanor, and in cases of misdemeanors upon which an indictment
has been found and returned to the County Judge for trial, said County
Judge shall immediately proceed to hear and determine said cases,
unless a continuance shall be asked for or a jury is demanded, as here-
inafter provided, which continuance, if it fails within the rules for the
continuance of criminal cases in the Superior Court, shall be granted
to such time as is proper and just under the circumstances. If parties
(p) Acts of
1821-2, p.
292. Act of
24th Feb.,
1873.
(q) Acts of
1871-2, pp.
292, 293, Z94.
78 PART I.— TITLE V.— CHAPTER IV.
The County Court and its officers.
accused shall not ask a continuance, or shall be refused a continuance,
and shall demand a jury to try their case, instead of the County Judge,
then the case shall be postponed until a jury can be summoned for such
trial.] (q.)
County Judge may try a misdemeanor: 63 Ga., 168. Warrant issued by County
Judge, and an accusation thereon for simple larceny: 62 Ga., 583. May close a case
and yet hear evidence afterwards; case of a certiorari where accusation was for selling
liquor to minors : 56 Ga., 601.
§298. Jurors, how procured and impaneled. [Jurors shall be procured
i87i-2 ts ° f * n ^ e f oi l° w i n g manner : Said County Judge shall, from the list of per-
294-5."' ' sons liable to do jury duty in the county wherein he presides, make a
list, and putting their names in a box kept for that purpose draw, by
lot, the names of twelve jurors, who shall be summoned by the same
bailiff already provided for in this chapter, (he being fully author-
ized to execute all orders, warrants, writs and precepts, relative to
criminal proceedings,) to attend before him at such time and place as
he may select, anywhere in the county of which he is Judge, when and
where the party accused, and demanding a jury trial, shall be tried as
accused parties are tried for misdemeanors in the Superior Courts of
the State. The accused shall have no right of peremptory challenge
to the jury so summoned, but may show any of them not to be free
from legal exception if he can, and if he can, and such exception is
sustained by the County Judge, other persons liable to serve as ju-
rors shall be summoned by said bailiff as tales jurors are summoned in
the Superior Court, until the jury of twelve men is obtained. In
order to procure an impartial jury, the County Judge shall ask the
jurors, under oath, (which he may administer,) such questions as will
ascertain the mental condition of the jury, and if any are found in-
competent, according to the rules provided in this Code, he shall, as
before provided, have tales jurors summoned until an impartial jury
can be procured. If the verdict of said jury, which shall have the same
power and duties as juries in criminal cases in the Superior Courts, as
to law and facts, shall be against the defendant^ he shall be sentenced,
as in cases where the County Judge alone tries the case.] (r.)
Jury of seven men not illegal under the Constitution of 1868 ; 51 Ga., 265.
§299. Proceedings where no indictment is demanded. When a criminal
Acts of 1878 case is first called for trial, the defendant shall be asked by the Judge
-9, p. 133. w h e ther he demands as a condition to trial, indictment or presentment
(s) Acts of by a grand jury; and, if he makes no such demand ; the fact shall be
294-5."' PP ' recorded; he shall then be asked whether he demands a trial by
jury, and if he makes no such demand, that fact shall be recorded;
and thereupon a written accusation shall be made out and pro-
ceedings shall be had thereon as follows, viz.: The County Judge
shall frame a written accusation, founded upon the affidavit charging
the defendant, said accusation to be in the name of the State of Georgia,
signed by the prosecutor, and distinctly setting forth the nature of the
offense charged, the time when, where, and by whom committed,and that
it is based upon said affidavit briefly referring to it ; to this accusation
the defendant may demur for insufficiency or plead to the merits, and if
the accusation is held insufficient the County Judge shall frame an-
other, and another, until one is adjudged legally sufficient, but in no
case shall the person accused be discharged for such insufficiency until
full opportunity is allowed to prepare the sufficient accusation ; when
the case is submitted to the County Judge, upon the pleadings as herein-
before set forth, (defendant being allowed full opportunity to plead and
defend as in criminal cases in the Superior Court,) the County Judge
shall give both parties, accuser and accused, time, if necessary, for a
fair and impartial hearing, and said County Judge shall, on the trial,
PART L— TITLE V.— CHAPTER IV. 79
The County Court and its officers.
before him or a jury, make a thorough and careful examination of all
the witnesses and testimony, and in no case allow either the State or
the accused to be prejudiced from any want of an examination or cross-
examination of the witnesses in the case before him ; after the case is
submitted, upon the evidence and law, the County Judge or the jury, if a
jury is demanded, shall, in ascertaining the guilt or innocence of the
party accused, be governed by the same rules as govern juries in crim-
inal cases in the Superior Court; if the decision of the County Judge,
or the verdict of the jury is against the defendant, said County Judge
shall at once sentence the accused according to law, and the rules of
law governing Judges of the Superior Courts in sentencing parties found
guilty of misdemeanors. If the decision of the County Judge, or the
verdict of the jury, is in favor of the accused, he shall be discharged
from the accusation so tried.] (s.)
Warrant issued by County Judge and accusation thereon : 62 Ga., 583. Misdemeanor
tried by County Court on accusation : 63 Ga., 168.
§299. (a.) Where indictment is demanded. Should the defendant so cle- Acts ofisrs
mand indictment or presentment, that fact shall be recorded and he ~ 9 ' p ' 133 -
shall be committed, or bound over, to the next Superior Court, having
due regard to the laws concerning bail in criminal cases ; and thereupon
the warrant, with an entry made thereon by the Judge of such demand
and of the fact of bail or of committal, with the bond if any, shall be
forthwitk transmitted to the office of the Clerk of the Superior Court,
to be proceeded on then according to law.
§299. (b.) Where offense is beyond jurisdiction. If, after hearing the Acts of i87s
evidence on any criminal trial, it shall appear to said Court, that the~ 9 ' p - 13S -
offense is beyond the jurisdiction thereof, the trial shall be discontin-
ued, and the accused committed, or bound over to the next Superior
Court, according to the law of bail and commitment ; and the proceed-
ings shall be, as in the preceding section, transmitted to the Superior
C mrt.
§299. (c.) Transferred cases, how tried. Such indictments, or present- Acts of isrs
ments, as may be transferred to the County Court by the Superior _9 > p- m -
Court, shall be tried therein in the manner herein set forth, except ask-
ing the defendant if he demands indictment or presentment.
§299. (d.) Prompt trial by jury, tohen. If any defendant in a criminal Acts of 1878
case shall demand a jury trial, it shall be promptly allowed him; and" ' p '
the procuring and empaneling of juries, and their service in the County
Court, shall be regulated by section 298 of this Code.
§299. (e.) Criminal jurisdiction, exercised when. Said Court may exer- Acts of 1878
cise its criminal jurisdiction at any session, monthly, or quarterly, and, ' p '
for the trial of any criminal case, the Court may sit at any time, after
two days' notice to the defendant, or immediately, if such notice is
waived.
§299. (f.) Prosecuting officer in County Court. In any County Court, Acts of 1878
which is not now provided by law with a regular Solicitor, the County _9, p - 135 -
Judge may, in any criminal case, appoint any member of the bar to
act as prosecuting counsel; who, when so appointed, shall exercise all
the powers of a Solicitor as to such case, and shall be entitled to the
same compensation for services so rendered, as now provided by law for
the Solicitor of the County Court, or one acting as such. In cases tried
in the County Court on a written acccusation the County Solicitor, or
the attorney appointed to prosecute cases in that Court, shall be en-
titled to the same fees now allowed by law to Solicitors-General for the
trial of like cases in the Superior Courts ; the fees are to be paid as the
fees of Solicitors-General are now paid, except that the County Judge
instead of the Judge of the Superior Court shall approve the cost bill
before the same is paid. In cases transferred from the Superior to the
V*
80 PART I.— TITLE V.— CHAPTER IV.
The County Court and its officers.
County Courts, and there prosecuted to trial by the County Solicitor
or the attorney appointed to prosecute such cases in that Court, the
Judge of the Superior Court shall cause an equitable division of the
cost to be made between the Solicitor-General and the County Solici-
tor, or the attorney appointed to prosecute in the County Court.
§300. Costs in criminal cases, fines and forfeitures. [When the County
a) Acts of Judge, or the jury, shall believe the accusations to be malicious, such
295 l ~\jt i Judge or jury may so find, and assess all the costs against the accuser;
24tii Feb., so, also, in all cases where the accuser shall fail to prosecute the case,
said Judge shall order that the accuser shall pay all the costs of the
case from beginning to end, inclusive, together with the jail fees.
Whenever said Judge shall adjudge that costs are to be paid, either by
the accused or the prosecutor, the costs shall be assessed as follows: In
all cases begun, but not tried, two dollars shall be paid (by the party
adjudged liable) to the County Judge; in all cases tried by the Judge,
or by him and a jury, the costs to be paid him (by the party held liable)
•shall be three dollars. In all criminal cases, and in all civil cases where
the amount sued on is over one hundred dollars, the Sheriff, deputy
sheriff and bailiff', shall be entitled to the same fees in said Court as are
allowed to them for similar service in the Superior Courts of this State;
and in cases where a less sum is sued on, one-half of said fees in said Su-
perior Courts. All of the costs assessed for the County Judge shall be
paid over by him to the county treasurer as fast as received, and an
account given of the same at each term of the Court to the grand jury.
If said Judge shall use any of said costs, or fail to turn over the same,
he shall be liable criminally, as county treasurer, under section 4368 of
this Code. Whenever the bailiff shall not be able to collect his costs,
on account of the poverty or insolvency of the defendant, he shall be
allowed the same from the fines and forfeitures hereinafter mentioned,
and costs paid over to the county treasurer from cases in the County
Court, and in all cases when an accusation is made by any person, the
County Judge is hereby required to use the same proceedings to secure
the costs of the cases presented to him as the Code requires of Justices
of the Peace issuing criminal warrants, not, however, exacting security.
When a party is adjudged liable, in a criminal proceeding, to pay costs
or fines, or both, the same shall be collected as costs and fines are col-
lected in the Superior Courts. Whatever fines and forfeitures are col-
lected by virtue of the sentence or judgment of the County Judge, shall
be collected and paid over to the county treasurer of each county. Said
County Judge shall have jurisdiction to determine forfeitures, as other
money demands, unless the amount involved exceeds his jurisdiction,
when the bond shall be turned over to be forfeited in the Superior
Courts, and all money collected thereon, save the expenses of collection,
shall be paid over by the County Judge to the county treasurer.] (t.)
Misdemeanors transferred from the Superior to the County Court, the fines and for-
feitures therefrom paid to county treasurer after payment of costs : 54 Ga., 41.
§301. Certiorari in criminal cases. [The County Judge shall have the
(u) Acts of right to try any and all of the criminal cases which may properly
294-5-6. PP " come before him, at any place in the county, and the right to certiorari
from his decision and judgment in all criminal cases shall exist as in
all civil cases, and the certiorari shall be obtained and disposed of, either
in term or vacation, in the following mode, to-wit : Such certiorari may
be had under the sanction and order of the Judge of the Superior Courts
of the Circuit in the county in which the case is tried, in all criminal
cases, upon a petition in writing, by the defendant, to said Judje, com-
•7 cases, ujjuii a. peni/iuii in writing, uy tut; ueieiiuaiiL, lu saiu t; uu»e, uuni-
^/, /%?./! $ A .plaining of errors and showing sufficient grounds of error, in %&& days
PART I.— TITLE V.— CHAPTER IV. 81
The County Court and its officers.
after such trial. This petition shall state the grounds of complaint,
and give a brief of the material evidence, and be duly sworn to.] (u. )
Certiorari and not a new trial is the remedy for a defendant convicted: 55 Ga., 222.
It must appear that the petition was sanctioned and filed in the clerk's office ten days
from the trial : 64 Ga., 752. Where there was a trial on an accusation before a Justice
of the Peace, and a certiorari was applied for : 55 Ga., 380.
Certiorari, when and how granted. [If, upon examination, the<; V ) Aetsof
Judge of the Superior Court shall consider the petitioner entitled to aJS7i-2, p.
writ of certiorari, it shall be his duty to issue such writ, directed to the
County Judge aforesaid, as in civil cases, requiring him to certify and
send up to him a complete and accurate history of the case so tried :
Provided, that no writ of certiorari shall be granted in a criminal case
unless the accused shall first have riled his affidavit, setting forth that he
has not had a fair trial, and that he has been wrongly and illegally con-
victed, and unless the party applying shall give such bond and secu-
rity, or make such affidavit as is permitted in this Code for parties in
criminal cases carrying up such cases to the Supreme Court of this
State.] (v.)
Where there was no affidavit and the certiorari was dismissed : 59 Ga., 764.
§303. Hearing of certiorari, and judgment thereon. [The history of the (w) Acts of
case given by the County Judge in obedience to the writ of certiorari .'g^ 1-2 ' p '
shall be called his answer, and which shall be subject to correction and~
traverse as is provided for in sections 3990 and 3994 of this Code, except
that said Judge of the Superior Court shall try said traverse. Said
Judge of the Superior Court shall hear and determine said certiorari and
return at any time after ten days' notice is given to the accuser, and
then may pass such judgment or sentence as, in review of the whole
case, is consistent with justice. In all cases where the County Judge
alone tries the case, such Superior Courts, on certiorari, may pass such
sentence or judgment as is consistent with law.] (w.)
§304. Docket of criminal case. [Said County Judge shall keep a docket ( X ) Acts of
of all criminal cases disposed of by him as hereinafter provided, and J| ! "-- p-
shall therein state the case, its nature and disposition, and shall, as in
civil cases, keep carefully all the papers separate so as to be able at any
time to make a true history of the cases disposed of.] (x. )
§305. Judge's power over the jail, and as to contempts. [Said County Acts of is? i
Judge shall, in the trial and determination of criminal cases, have the ~ 2 » p - 2% -
same authority to preserve order and punish contempts as is given him (z^Acts of
in civil cases, and shall have the same authority and controlof the p^G.'
jail for the punishment of offenders as the Judges of the Superior Courts.]
§306. County Judge not to act with Justices of the Peace. [Said County
Judge shall at no time exercise jurisdiction in criminal cases in con-
currence with a Justice of the Peace ; all cases brought before the Jus-
tices of the Peace of the county if they shall appear to be misdemeanors,
shall at once be turned over to the proper County Judge for trial, which
shall be treated by him as if originally brought before him], (z.)
§307. Attendance of witnesses compelled. [Said County Judge shall have (a) Acts of
the same auchority to procure testimony and compel the attendance of lf^~ 2 ' p '
witnesses in criminal cases as Judges of the Superior Courts], (a.)
§308. Laivs made applicable. All the law of this State applicable to (t» Acts of
criminal proceedings before Justices of the Peace, and the Judges of JS? 1 "^—
the Superior Courts, not inconsistent with the provisions of this chap-
ter and which can be applied to criminal proceedings before County
Judges, and all the law of this State applicable to civil proceedings
before Justices of the Peace not inconsistent with the provisions of this
chapter, and which can be applied to civil proceedings before the said
County Judge, are hereby made apart of this chapter], (b.)
6
82 PART I.— TITLE V.— CHAPTER IV.
The County Court and its officers.
No pleas under oath required in Justice of the Peace Courts, or on an appeal there-
from in the Superior Court : 59 Ga., 774. No declaration in attachment need be filed in
County Court: 58 Ga., 323. Discussed in reference to distress warrants : 61 Ga., 12-14.
§309. Certiorari to verdict of jury. [Whenever a trial by jury is de-
(o Acts of nianded, and the same shall be had before the County Judge and a jury
1871-2, p. on which the County Judge is hereby authorized to act as a Judge of
the Superior Court in criminal trials, and the party accused is found
guilty, and error by the jury is complained of, the Judge of the Supe-
rior Court has full power, and it is hereby made his duty, to revise their
proceedings by certiorari, obtained as hereinbefore provided in criminal
cases before the County Judge alone; and if a material error is discov-
ered by him in the finding of the jury he shall grant a new hearing
before a jury, to be had in the same mode as the first trial. The writ
of certiorari in this class of cases shall be directed to the County Judge
requiring him to certify all the proceedings before the jury, so that the
Judge of the Superior Court can ascertain if any error was committed
by the jury and rectify the same], (c.)
§310. Process in criminal cases, how directed. [The County Judge ma}%
<&) Acts of in criminal cases when he deems it necessary, direct his criminal vvar-
297 12 ' P " ran ^ s j orders and proceedings of all sorts, to the Sheriff of the county,
to his own bailiff or any lawful constable of the county], (d.)
§311. Bailiff 7 s sales, how conducted. All sales to be made by the bailiff
(e) Acts of of the County Judge, either in execution of civil or criminal process,
29? 1 2 ' P ' sna ^ De a t the Court House of the county or at a Militia Court-ground
as the County Judge may designate, having due regard to the interest
of the parties; said bailiff first giving the usual notice given by con-
stables, or when the County Judge may so require giving notice by
advertisement in a newspaper having a general circulation in the
county], (e.)
§312. Office of Judge, ivhere kept. Comity Judges shall keep their
Acts of is7i offices and all papers and other things belonging thereto, at the county
-2, p. 296. g j£ e an( j a £ ftiQ Court House, unless impracticable from any cause, and
notice of where said office is located shall be given by publication for
the space of two weeks, in a public gazette having general circulation
in the respective counties, or by notice of the same at three or more of
the most public places in the county, in the discretion of the County
Judges. Said offices shall be kept open everyday, except Sundays and
public holidays.*
§313. Judge shall do duties of Inferior Court. [The County Judge shall
(g) Acts of discharge all the duties formerly devolved on the Justices of the Infe-
pp^w-s r ^ or Court as to county business, except in those counties where, by
local laws, other provision has been made on the subject.] (g.)
§314. Cases of misdemeanors to be transferred. [In all of the Superior
(h) Acts of Courts of this State, where cases of misdemeanors are now pending,
III 1 ' 2 ' P ' * ne same sna ll °e transmitted to the Courts created by the law of this
chapter, after the same are established, and the Clerks of said Superior
Courts shall then transmit to said County Court the papers of all sorts
connected with said cases, and when this is done, the County Judges
shall proceed with such cases according to the provisions of this
chapter.] (h.)
Fines and forfeitures should be paid to the county treasurer after paying officers of
the Superior Courts costs : 54 Ga., 41.
§315. Costs in transferred cases, hovo collected. [Whenever an indictment
for a misdemeanor shall be transferred, as provided in the preceding
is72 ActS 29« sec ti° n i an( i the party on the trial shall be adjudged liable to pay costs or
"' ' fines, or both, it shall be the duty of the County Judge to collect the
same, as costs and fines are collected in the Superior Courts ; and, when
-•The last two lines of this section, changed by Act of 1878-9, p. 132. See section 317, C
PART I.— TITLE V.— CHAPTER IV. 83
The County Court and its officers.
collected, before paying over the same to the County Treasurer, to deduct
therefrom the costs due to the Solicitor-General and Clerk of the Su-
perior Court, and to pay the same over to said officers, or to retain such
amount subject to their order.] (i.)
Costs should be paid to officers of the Superior Court, and the balance paid to the
county treasurer : 54 Ga., 41. County Court Solicitor is not entitled to Solicitor-Gen- ♦
eral's fee of five dollars for drawing a bill of indictment : Gl Ga., 70-1.
§316. Salary of Judge may be fixed at fall term,. [If the grand juryO") Acts of
"IT-IT !/*/"! Q7O y^ t)(|W
shall, at the spring term, fail to assess and declare what amount shall ' p '
be paid to the County Judge for his services, as hereinbefore provided,
then the grand jury, at the fall term, may make the assessment and
fix said salaiy, and the same shall be paid to said Judge by the County
Treasurer, as elsewhere provided in this chapter.] (j.)
§317. County Judge may grant new trial. [Said County Judge shall uv Act of
have full power to grant new trials in all cases adjudicated by him, andfj^ Feb "
his decision and judgment on such new trials, excepting where grant-
ing a new trial to persons convicted of crimes, shall be subject to re-
vision by writ of certiorari or appeal, as in other cases, and the right of
appeal, as provided by law for parties sued for more than fifty dollars,
principal, shall extend to cases provided for in this section.] (k.) But Acts of
all motions for new trials in criminal cases tried before the County l876 ' p " 104 "
Courts of this State, shall be made within ten days from the date of
conviction, and in the same manner and under the same rules of prac-
; tice as are of force in the Superior Courts of this State.
Cannot grant a new trial : 55 Ga., 222. Unconstitutional so far as it attempts to con-
fer on County Judge power to grant new trials : 61 Ga., 454. Decisions relating to the
old County Court: 35 Ga., 224, 232, 265; 36/95, 236, 475, 599; 39/39; 40/702; 44/195.
§317. (a.) Certiorari and appeal. In civil cases, the right of certiorari Acts of 1878-
from the County Court shall be as provided in section 287, and the right ~ 9, p- m
of appeal as in section 286 ; and in criminal cases the right of certiorari
and all proceedings thereon shall be as in sections 301, 302, 303 and 309
of this Code.
§317. (b.) Certain sections applicable to all. Sections 279, 280, 296, 300, Acts of 1878
315, 316 and 317 of this Code are declared to be applicable to all County ~ 9, p - 136,
Courts. •
§317. (c.) County Courts, ichere held, The County Court shall be held Acts of 1878
at the Court House, or where the Superior Courts are usually held in -9 ' p " 132 '
the county ; and shall have the same powers as to continuances and ad-
journments, which belong to the Superior Court.
§317. (d.) Extent of Act of 1878-9. Nothing in this chapter shall be
construed to establish a County Court where there is none, nor to abol-
ish any County Court now existing, nor to repeal any local Act affect-
ing the compensation of the officers of such Court ; nor to take away
from any County Court, or Judge, jurisdiction of any matter on which
[proceedings have begun before 13th October, 1879, but such proceedings
may be carried on to completion as if the Act of 1879 had not been
passed, and nothing herein contained shall be construed to repeal sec-
tion 313 of the Code, in relation to the duties of the County Judge as
jto county business, and no County Court shall be established in any
county having a City Court.
§317. (e.) What laws repealed. All laws, general or local, except as in
the Act of 1879 provided, by which jurisdiction or power is conferred
on any County Court, or Judge; or whereby its proceedings or practice,
|or the force or effect of the process, judgment or decree of any such
Court is defined, and all laws in conflict with the Act of 1878-9, p. 136,
are repealed. /
General Note. — This chapter applies to all County Courts in the State unless ex-
2epted : 50 Ga., 123. As to certiorari^ from the County Court the general Act controls :
19 Ga., 173.
84
PART L— TITLE V.— CHAPTER V.
Article 1.— The Ordinaries and their Courts.
CHAPTER V.
ORDINARIES.
Article 1. — The Ordinaries and their Courts.
Article 2. — The Ordinaries as Clerks.
Article 3. — The Ordinaries as School Commissioners, etc.
ARTICLE I.
the ordinaries and their courts.
Section.
3ls. Name and style of the Ordinary.
319. His election and term of office.
320. His oath of office.
3-ai. His bond.
3-22. Shall give other security, when.
323. Vacancies, how filled.
324. Ordinaries elected to fill vacancies.
325. Must complete unfinished business.
3-26. When Ordinary is disqualified.
327'. Eligibility and disability.
328. His trust as executor, administrator, etc.
329. Who takes administration.
Section.
330. Where Ordinary's office must be kept.
33 1 . Jurisdiction and powers of his Court.
332. May punish for contempt, etc.
333. May grant administrations, when.
334. Administration in certain cases.
335. Must report estates unrepresented.
336. Failing to account as executors, etc.
337. Authority over county matters.
33^. Other authority.
339. Cannot practice law in his own Court.
340. May administer oaths.
Act of 1799, §318. (354.) (294.) Name, style, etc., of Ordinary. The Court established
a f'f 8 i8io P ursuan ^ t° the amended Constitution, approved the second time De-
c p. 283. ' cember 5th, 1851, has the name and style of the Court of Ordinary, and
-4 ct p°9i 1851 the incumbent thereof has the name and style of the Ordinary.
§319. (355.) (295.) Election, etc. The Ordinaries are elected by the
(a) Acts of people of their respective counties, at the time and in the manner here-
1872, pp. 8ii na fter prescribed, who. hold their offices for four years, unless sooner
removed in the manner prescribed by law ; [and the terms of the suc-
cessors to the terms of the several Ordinaries in this State, who were
elected in the year 1868, shall begin on the first day of January, 1873,
and expire on the first day of January, 1877. And succeeding terms
of the several Ordinaries in this State shall, as directed in this section,
begin on the first day of January, and expire on the first day of Janu-
ary, four years next thereafter.] (a.)
§320. (356.) (296.) Oath. Before entering on the duties of their offi-
ces, they must take and file the oaths required of all civil officers, and
in addition, the following oath :
" I do swear that I will well and faithfully discharge the duties of
Ordinary for the county of , during my continuance in office, ac-
cording to law, to the best of my knowledge and ability, without favor or
affection to any party, and that I will only receive my legal fees. So
help me God."
§321. (357.) (297.) Bond. They must also give bond and surety, in
Acts of i85i the sum of one thousand dollars, for the faithful discharge of their du-
-2, p. 96. £- eg ag c i er k s f ^g Ordinary.
Only as clerk and not for other liabilities: 53 Ga., 301. Form of bond not material, j
and it is for the performance of his duty as clerk : 56 Ga., 293.
§322. Shall give other security, when. [If at any time during the term
(a) Acts of of such Ordinary, it be made satisfactorily to appear to the Judge of
1871-2, p.54. ^ e superior Court, that the bond, of such Ordinary is insufficient, or
the security thereof insolvent, it shall be his duty to require other
security, and on failure of the Ordinary to comply with the order of
L
PART I.— TITLE V.— CHAPTER V.
85
Article 1.— The Ordinaries and their Courts.
the Judge, a Vacancy shall be declared, as if he had failed to give se-
curity in the first instance.] (a.)
§323. (358.) (298.) Vacancy, how filled. [When a vacancy occurs in Acts of ism
the office of Ordinary in any of the counties of this State, it shall • be ~ 2, p ' 95 '
the duty of the Clerk of the Superior Court of said county, on the fact
of said vacancy being made known to him, to order an election to take
place within twenty days from the date of said order, and notice thereof
shall be given by publication in the public gazette in which the Ordi-
nary of said county publishes his citations] (a), and until the vacancy < a ) Acts of
is filled, the said Clerk of the Superior Court shall perform all the 1871-2, P-29«
duties which the Ordinary could perform as clerk, and no more.
Section cited, and the Clerk of the Superior Court acts as clerk : 46 Ga., 635.
§324. (359.) (299.) Ordinary elected to fill vacancy. The person elected
to supply the vacancy must be commissioned for the unexpired term.
§325. (360.) (300.) Citations, how disposed of . All citations and other
unfinished proceedings of the former Ordinary must be disposed of by
the successor as though there had been no vacancy.
§326. (361.) (301.) When Ordinary is disqualified. When the Ordinary
is disqualified, the proceedings shall be carried as though by consent
of parties, by appeal to the Superior Court, and when the appeal shall
have been entered and filed in the office of the Clerk of the said Super-
ior Court (which shall be done without delay), the Judge of said
Superior Court is authorized and hereby empowered to pass any and
all orders, and issue all citations or processes in the matter, cause, or
proceeding appealed, as before herein provided, in the same manner
and upon such terms as the Ordinary would be authorized to do, if he
were not so disqualified, and the said Judge of the Superior Court may
pass any such order and issue such citations either in term time or
during vacation at chambers, and all orders or citations made and passed
by such Judge shall be entered by the Clerk of said Superior Court
upon the minutes of said Court, and shall also be transmitted by said
Clerk of said Superior Court to the Court of Ordinary of such county,
and shall likewise be recorded on the minutes of said Court of Ordi-
nary : Provided, nothing herein contained shall authorize or empower
such Judge to pass upon or determine any controverted questions or
issues of fact, or caveats filed to any application or in any proceeding so
appealed from the Ordinary, but all issues of fact, controverted ques-
tions and caveats shall be passed upon at the regular terms of said court,
and by the jury, except by the consent of all parties at interest, who
shall agree that the same may be determined and. passed upon by the
said Judge, and in the meantime temporary letters shall issue or other
legal means used, if necessarv, to preserve the estate.
§327. (362.) (302.) Eligibility and disability of Ordinary. The eligi-
bility and disabilities of the Ordinary, aside from the Constitution, are
the same as the Clerks of the Superior Courts for their offices, with the
addition that they cannot, during their terms of office, be executors,
administrators or guardians, or other agent of a fiduciary nature required
to account to their Courts; but they may be administrators, guardians
or executors, in cases where the jurisdiction belongs to another county,
or where, in special cases, they may be allowed by law and required to
account to the Ordinary of another county.
§328. (363.) (303.) His trust as executor. When any persons holding
such trusts are elected Ordinaries, their letters and powers (immediately)
abate on their qualification.
§329. (364.) (304.) Who administers when Ordinary is clerk. When the
Ordinary is also the Clerk of the Superior Court, and there is no public
administrator, or other person upon whom the law casts the administra-
Actsof 1880
-1, p. 72.
/ff.
/4rz>,
Acts of 1851
-2, p. 93.
Acts of 1851
-2, p. 93.
§2495.
86 PART I.— TITLE V.— CHAPTER V.
Article 1. — The Ordinaries and their Courts.
tion of unrepresented estates, such administrations are c*ast upon the
Sheriffs of the several counties who must become such administrators.
§330. (365.) (305.) Office, where kept. The Ordinaries must keep their
offices at the place and in the manner prescribed for Clerks of the Supe-
rior Courts, and must hold their Courts at the place prescribed for the
Superior Courts, or in their offices.
§331. (366.) (306.) Jurisdiction, etc. Courts of Ordinary have author-
ed °28i 799 ' ^y ^° exer °i se original, exclusive and general jurisdiction of the follow-
Act'of i8io, ing subjects-matter:
C p. 283. ° J
Acts of 1851 Section cited, 63 Ga., 770. Courts of Ordinary are Courts of general jurisdiction : 56
-2. P- 9 1' . Ga., 431. Courts of general -jurisdiction as to matters relating to intestates' estates: 54
Acts of 185o n fl Aan
-6, p. 147. ' '
1. Probate of wills.
What is meant by exclusive jurisdiction: 52 Ga., 159. A Court of chancery cannot
set aside a will afterprobate»of the will in a Court of Ordinary : 53 Ga., 302.
2. The granting of letters testamentary, of administration, and the
repeal or revocation of the same.
The granting of letters of administration may be impeached for want of power : 18
Ga., 173-176.
3. Of all controversies in relation to the right of executorship or
administration.
4. The sale and disposition of the real property belonging to, and the
distribution of, deceased persons' estates.
Section cited and construed: 47 Ga., 200. Ordinary may order the sale without ex-
press authority of law : 50 Ga., 567-8.
5. The appointment and removal of guardians and minors and per-
sons of unsound mind.
6. All controversies as to the right of guardianship.
Estoppel, as to: 25 Ga., 696. Cannot appoint a guardian for infant residing out of
"his county: 25 Ga., 613.
7. The auditing and passing returns of all executors, administrators
and guardians.
8. The discharge of former, and the requiring of new surety from ad-
ministrators and guardians.
9. The issuing commissions of lunacy in conformity to law.
10. Of all such other matters and things as appertain or relate to es-
tates of deceased persons, and to idiots, lunatics and insane persons.
11. Of all such matters as may be conferred on them by the Consti-
tution and laws.
12. [And concurrent jurisdiction with the County Judge in the bind-
(a) Acts of ing out of orphans and apprentices, and all controversies between
1865-6, p. 6. master and apprentice.] (a.)
General Note. — Previous to 1839 where there were assets, since that time a different
rule has prevailed : 21 Ga., 161. Jurisdiction denied unless orphan lives in the county
or has property there: 7 Ga.. 362. Discussed: 8 Ga., 236; 12/424. Courts of Ordinary
are Courts of general and exclusive jurisdiction: 13 Ga., 1; 47/195. Not a Court of
, limited jurisdiction so far as testate and intestate estates are concerned: 14Ga.,27;
18/526. Is a Court of general jurisdiction, in the matter of appointment of guardians:
24 Ga., 245. The Act of 1829 gave the Court of Ordinary all the powers of a Court of
chancery : 24 Ga., 558. Probate of wills pertains to Courts of Ordinary generally, and
not to Courts of chancery : 27 Ga., 17. When the Ordinary can apprentice an illegiti-
mate: 36 Ga., 440. As to year's support: 45 Ga., 459.
Jurisdiction of- Probate Courts : 18 Am. D., 116, n ; 20 Am. P., 555 ; 27/276. and note.
286; Wells' Jur., §274; 30 Am. P., 746; 32/309. How determined by domicile: Wells 5
Jur., §275. Conclusiveness of records: 14 Am. D., 663, n; Wells' Jur., §274. Order to
sell land: Wells' Jur., §282, and note, §2559. Cannot control acts of executor, etc., in
another Court: Wells' Jur., §289. Ordinary may probate will attested by him : Wells'
Jur., §301. If interested, his acts are voidable, not void : Wells' Jur., §301. May issue
citations for probate of will in which he is legatee, but cannot decide the question:
33 Am. R., 346. Practice should conform to that of similar jurisdiction in England:
R. M. Charl., 100.
PART I.— TITLE V.— CHAPTER V. 87
Article 1. — The Ordinaries and their Courts.
§332. (367.) v (307.) May punish for contempt. .Such Courts may issue §4121.
rules and attachments for contempts offered the Court, or its process, by
any executor, administrator, guardian or other person, and may punish
the same by a fine as high as fifty dollars, or imprisonment not exceed-
ing five days (one or both).
§333. (368.) (308.) Ordinary may grant administration. The Ordinary §2.302.
can grant administration upon no person's estate who was not a resi-
dent of the county where the application is made at the time of his
death, or, being a non-resident of the State, has property in said county,
or a bona fide cause of action against some person therein.
As applicable to non-residents : 62 Ga., 637.
§334. (369.) (309.) Administration, in what county granted. When such
non-resident deceased persons have such property or cause of action in
more than one county, such letters may be granted in either county,
and the Ordinary first granting them acquires exclusive jurisdiction.
Where non-resident has bonds or promissory notes: 52 Ga., 648, 653. As to non-
residents: 62 Ga., 637.
§335. (370.) (310.) Unrepresented estates, etc. Such Ordinaries shall, at Acts of issi
each term of the Superior Courts of their respective counties, report to -2 ' p * 98-
the presiding Judge the estates in their hands unrepresented, together
with their condition.
§336. (371.) (311.) When ineligible. If any Ordinary fails faithfully
to account as executor, administrator or guardian, after becoming such
Ordinary, which trusts he held at the time of his election, he is ineli-
gible to a re-election.
§337. (346.) (286.) Authority over county matters. [The Ordinary, when (a) Const. +
sitting for county purposes, has original and exclusive jurisdiction n, sec'. 7. r "
over the following subject-matters, to-wit
1. In directing and controlling all the property of the count} 7 as he *^
may deem expedient according to law
Where he cannot buy land for the county: 49 Ga., 38. Control of the county prop- s *?*f%
erty formerly belonged to the Inferior Court: 9Ga.,486; 13/502.
2. In levying a general tax for general, a special tax for particular,
county purposes, according to the provisions of this Code.
3. In establishing, altering or abolishing all roads, bridges and ferries,
in conformity to law.
4. In establishing and changing election precincts and militia dis-
tricts.
5. In supplying, by appointment, all vacancies in county offices, and
in ordering elections to fill them.
6. In examining, settling and allowing all claims against the county.
Calling on the county treasurer for a settlement of accounts: 64 Ga., 677-9.
7. In examining and auditing the accounts of all offices having the
care^ management, keeping, collection or disbursement of money be-
longing to the county or appropriated for its use and benefit, and
bringing them to a settlement.
8. In making such rules and regulations for the support of the poor
of the county, for county police and patrol, for the promotion of health
and quarantine,' as are granted by law or not inconsistent therewith.
9. In regulating peddling and fixing the costs of license therefor.]
(a.)
General N"<
member of the
money and negotiating bonds for the county : 45 Ga., 325? As to transfer "of juris'dic*
tion to the Ordinary, and cannot be treasurer of board of education: 45 Ga., 498.
Note.— The Ordinary under the Constitution of 1868 has the duties of each
le Inferior Court: 41 Ga., 222. Injunction against an Ordinary borrowing
88 PART L— TITLE V.— CHAPTER V.
Article 2. — The Ordinaries as Clerks.
§338. (347.) (287.) Other authority. [The Ordinary also has author-
ity—
1. To sit at any time as a Court for county purposes and for the exer-
of lS^Art c ^ se °f an y P ower ne possesses as a quasi corporation, contra-distinguished
n, sec. 7. from his power as a Court.
Justices of the Inferior Court, a quasi corporation with limited powers : 13 Ga., 502.
Justices of the Inferior Court could not be sued as a quasi corporation: 15Ga.,309;
18/473. But see section 492.
2. To appoint any person to discharge any trust authorized by his
powers, where no other person is designated by law, and to regulate his
compensation, and to take bond and security.
3. To approve all official bonds required of him by law and sent to
him by the Governor with the dedimus, to qualify such officers, and to
deliver them their commissions.
/ft? S/2 ? ^' ^° exer °i se such other powers as are granted by law or are indis-
/<? y* •<*-« pensable to his jurisdiction.] (b.)
5. It shall be the duty of the Ordinary of each county in this State,
Acts of 1875, in each year, before the county tax is levied, upon application to him
Actsof 1876, an d proof being shown to him by any person, that he entered into
p. 109. the military service in defense of the South, during the late civil
war between the Confederate States and the United States of Amer-
ica ; that he served faithfully in said service, and in the same, or
since the war, by reason of said service, lost both eyes, or two limbs,
meaning thereby arms, or legs ; or who had but one eye, and lost the
same in the service of the Confederate States, or had it so damaged as
to result in the loss of the same ; that he has not more than one thou-
sand dollars of taxable property, to levy a special tax, as a part of the
county tax., of one hundred dollars for each of such applicants, when
such proof is made to his satisfaction, which tax shall be collected by
the County Tax Collector, and paid over by him to such applicant,
; when he is shown by him a proper certificate from the Ordinary of said
county ; said tax of one hundred dollars shall only be levied for a citizen
of said county, and shall cease when such applicant, so relieved, ceases
to be a citizen of said county.
§339. (372.) (312.) Cannot practice law in his otvn Court. No Ordinary
Acts onssi shall engage, directly or indirectly, in the practice of law in his own
Act P of 9 i859, or ln the name of another, as a partner, open or silent, or otherwise, in
/2 j /3i: 18 * an y cause or proceeding in his own Court, or in another Court of which
>^£»yC <w+-*~ ^ t *— 'his own Court has, or has had, or may have jurisdiction.
; £ L(*m-^l». ffj* # & "■ Ordinary also an attorney cannot give a professional opinion of the construction of
^^y V / a will that might come under his jurisdiction : 26 Ga., 127.
/ §340. (373.) May administer oaths. [The several Ordinaries of this
Acts of 1865 State are authorized to administer oaths in all cases where the author-
ity is not specially delegated to some other officer, and receive the same
fees therefor as are allowed Justices of the Peace.]
ARTICLE II.
THE ORDINARIES AS CLERKS.
Section.
341. Ordinaries may appoint clerks.
342. Powers of such clerks.
Section.
343. The Ordinary may require bond, etc.
344. Special duties of the clerk.
§341. (374.) (313.) Ordinaries' clerks. The Ordinaries are, by virtue
Acts of 1851 of their offices, clerks of their own Courts, but they may, at their own
~ 2 ' p ' 50 ' expense, appoint one or more clerks, for whose conduct they are respon-
sible, who hold their offices at the pleasure of such Ordinary.
Contest for clerk of Ordinary : 8 Ga., 360.
PART I.— TITLE V.— CHAPTER V. 89
Article 2. — The Ordinaries as Clerks.
§342. (375.) (314.) Poivers of clerk. Such appointed clerks may do all
acts the Ordinaries could do, not judicial in their nature.
§343. (376.) 315.) Bond. When clerks are thus appointed, before
entering on the duties of their offices, they may give to the Ordinary a
bond and security in the sum of one thousand dollars.
§344. (377.) (316.) Duties of clerk It is the duty of such clerks, or
the Ordinaries acting as such — , B . v K s
1. To issue all citations required by law. f-*~Jz^~-***~i£-*~ *-^4^^ c-^-ti*. *:&*^J* £-*
2. To grant temporary letters of administration. <*+ * -+&* *t%~>**<*~ t --*-^.// K J~-~iJ.y0,
Certiorari to the Superior Court where the Ordinary grants letters of administration
pendente lite : 40 Ga., 390-1.
3. To grant marriage licenses.
4. To issue all fi. fas. for costs on all judgments of the Ordinary or
other process necessary to enforce them.
5. To issue subpoenas for witnesses, and all similar process for rip-
ening a trial.
6. To issue any paper or process by order of the Ordinary, and bearing
test in his name as other clerks.
7. To keep fair and regular minutes of each session of the Court,
entered in a well-bound book, and such other services during term time
as the Ordinaries may require.
8. To keep in their offices other suitable books for the following pur-
poses, viz. :
A book for the record of wills.
Another for the record of all letters of administration and guardian-
ship.
Another for the record of all bonds given by administrators and guar-
dians.
Another for the record of all appraisements, inventories and sched-
ules;
Another for the record, of all accounts of sales.
Another for the record of all accounts current authorized to be made
to the Ordinary, together with the vouchers accompanying the same.
Another for the record of all marriage licenses and the returns
thereon.
Another as a docket in which to enter all applications and other pro-
ceedings, in the order they are made, and which shall be called in like
order at each session.
Another for the record of all official bonds required to be recorded in
the Ordinary's office.
9. To procure and preserve, for public inspection, a complete file of
all newspapers in which their advertisements appear, as the Clerks of
the Superior Court are required.
10. To keep their books and papers arranged, filed, and labeled and
indexed, as clerks are required.
11. To give transcripts likewise as they are required,' and when
the Ordinary and the clerk are the same person, so to state in the cer-
tificates.
12. To perform any other duty required of* them by law, or which is
indispensable to those required.
[Sees. 378, 379 and 380 repealed by Act of 1872, p. 64. See 45 Ga.,
498.]
Referring to section (378) as being repealed, alluded to : 45 Ga., 498-9.
90
PART I.— TITLE V.— CHAPTER VI.
Sheriffs and their duties.
CHAPTER VI.
SHERIFFS AND THEIR DUTIES.
Section.
345. Sheriffs, how elected.
346. A surety for tax collector.
347. Vacancies in the office of Sheriff.
348. His oath of office.
349. Must give bond.
350. Bond to be examined.
351. His bond, where recorded.
352. Judge of the Court may examine.
353. When a Sheriff is succeeded.
354. Sheriff's office— where to be kept.
355. May appoint deputies.
356. The Sheriff is jailer.
Section.
357. Jailers must take an oath.
358. Bond and oath must be recorded.
359. Jailers bound to receive prisoners.
360. Sheriff liable for acts of deputy.
361. Sheriff's duty in executing orders.
362. May administer oaths.
363. His book of entries when filled.
364. Cannot purchase at his own sale.
365. When allowed fees.
366. Defaulting Sheriffs.
366. (a) Prison record.
366. (b) Grand jury to inspect record.
-4,p
§3342,
28.
§345. (381.) (320.) Sheriff's election and qualification. Sheriffs are elec-
ed, qualified, commissioned, hold their offices for the same term, and are
subject to the same disabilities as the Clerks of the Superior Courts.
§346. (382.) (321.) 'A surety for tax coller! or. A surety for any tax col-
lector or other holder of public money is ineligible to the office of
Sheriff, until all moneys for which he is bound shall have been paid to
the proper authority.
§347. (383.) (322.) Vacancies. Vacancies are filled and the after pro-
Acts ofi853 ceedings are as in cases of vacancies in Clerks of the Superior Courts,
except that in case there is a failure to appoint, as set forth in section
260 ; the coroner of the county shall act as Sheriff, and if there is no coro-
ner the Ordinary shall make a temporary appointment, and on failure
of both, the Sheriff of any adjoining county is authorized .to act as
Sheriff until the Ordinary shall make their appointment or there is an
election.
§348. (384.) (323.) Oath of office. Before entering on the duties of their
office they shall take and subscribe, besides the oath of all the civil
officers, the following oath, before the Judge of the Superior Court or
Ordinary, viz:
" I do swear that I will faithfully execute all writs, warrants, pre-
Actof 1799, cepts and processes directed tome as Sheriff of this county, or which are
Ac?'of 7 i803 directed to all Sheriffs of this State, or to any other Sheriff specially, I
a' ?' f 9 ?^' can iaw f uii y execute, and true returns make, and in all things well and
c. p. 217. ' truly, without malice or partiality, perform the duties of the office of
Sheriff of county, during my continuance therein, and take only
my lawful fees. So help me God." .
§349. (385.) (324.) Bond. They shall also give a bond, with at least
two sureties, in the sum of [ten] (a) thousand dollars (unless changed
to a less or greater amount by local acts now in force or hereafter to be
enacted,) conditioned for the, faithful performance of their duties as
Sheriffs, by themselves, their deputies and their jailers, and upon the
terms required by law.
There must be some breach of official duty to be a breach of the bond : 19 Ga., 274.
Good as a voluntary bond although not executed within the time required : 1 Ga., 574.
Voluntary bond enforced as at common law: 3 Ga., 499. Sheriffs voluntary bond
covers the acts of his deputy: 9 Ga., 314, When the admissions of a Sheriff are admis-
sible against his sureties: 14 Ga., 584. Sureties on bond applying for release, and the
Sheriff failing to give bond as required, vacates his office : 46 Ga., 635. Liabilities of
sureties where Sheriff receives money after the qualification of his successor: 2 Ga.,
248. Delivery of the bond: 3 Ga., 506. Bond void where condition not performed
as to other signatures, escrow: 6 Ga., 202. When bond not delivered as an escrow:
11 Ga., 286. When the bond is not approved as required by law it is not good as a
statutory bond : 6 Ga., 552. When cannot supersede one bond by another : 9 Ga., 585.
When sureties are released, and as to the object in requiring a bond: 17 Ga., 521.
What declarations sufficient in an action on a bond : 6 Ga., 239. When sureties not
discharged: 6 Ga., 239. Effect of rule absolute in suit on bond : 6 Ga., 239. Rule ab-
solute against a Sheriff in a suit on his bond, conclusive against the principal and pre-
sumptive as to the sureties : 7 Ga., 445. Sureties may defend against a Sheriff's bond
by showing a former suit in his favor: 30 Ga., 927. Judgment against the Sheriff
(a) Acts of
1866, p. 17.
PART L— TITLE V.— CHAPTER VI. 91
Sheriffs and their duties.
admissible against the surety on his bond : 30 Ga., 928. Debt on Sheriff's bond under
Act of 1809 (C, p. 200) and of 1823 (C, p. 539) : 12 Ga., 36. Proof is not thrown on the
plaintiff to show that the bond conforms to the statute, where there is no plea of non
est factum: 15 Ga., 423. Trespass on the case against a Sheriff for damages, for not ad-
vertising a sale under an execution: 31 Ga., 601-6. Where there was no defense filed
to a suit on a bond, judgment was rendered by the Court : 60 Ga., 314. Declaration in
suit on a boiid for failing to serve process, etc. : 62 Ga., 168. May proceed against a
surviving surety where the others on the bond are dead : 48 Ga., 550. Judgment against
the Sheriff reversed, the sureties not appealing held not liable: 18 Ga., 38. When an
attorney may sue for himself on Sheriff's bond: 34 Ga., 173. Measure of damages
against a Sheriff for failure to serve process is the loss suffered by such failure: 63 Ga.,
509.
Brandt on S. & G., §§448, 456, 483-489; 9 How., 297; 18/396; 14 Am. D., 259; 15/167;
20/218 ; 4 C. L. J., 238.
§350. (386.) (325.) By whom examined and approved. Such bonds
shall be approved by the Ordinary of the county, and then deposited in
the office of the Clerk of the Superior Court until the first session of
that Court thereafter, when the presiding Judge shall examine said
bonds, and if taken in conformity to the law, and the sureties are suffi-
cient, so declare by order, and have them spread upon the minutes of
the Court; and if it has not been so taken they shall give another
ibond, which said Judge is authorized to take and have entered on said
minutes.
As to the substitution of another bond : 9 Ga., 585.
§351. (387.) (326.) Bond to be recorded, etc. When said bonds are
| thus approved by the Ordinary, and before deposited in said office, they
shall be recorded in the office of the said Ordinary, and after being
passed upon by the Judge of the Superior Court, shall be returned
to the office of said Ordinary and by him filed ; and if the Judge of the
Superior Court compels said Sherifl to give a new bond, after having
been approved and entered on the minutes, it shall be filed in the office
of the the Clerk of the Ordinary, and be recorded therein without fur-
ther approval.
§352. (388.) (327.) Judges of Superior Court may examine said bond.
If a term of the Superior Court is held in the county before the Ordi-
nary shall have approved the Sheriff's bond, the Judge of the Superior
Court may do so in the first instance, being careful to take the opinion
of such Ordinary, as to the solvency and sufficiency of the sureties, and,
having so approved, the other proceedings are as hereinafter set forth.
Duty of the Judge of the Superior Court in passing on the legality and solvency of
the bond: 17 Ga., 521.
§353. (389.) (328.) When Sheriff is succeeded by deputy. When a
Sheriff's deputy is the succeeding Sheriff, the sureties must be essen-
tially different from those on such Sheriff's bond.
§354. (390.) (329.) Sheriff's office. Sheriffs must keep their offices at
the same place and on the same terms as Clerks of the Superior Court
are required.
§355. (391.) (330.) May appoint deputy. They are authorized in their Act of ^1799, /UttstSw
discretion, to appoint one or more deputies, from whom they must take c&m*-* "^f- ^*~
a bond with sureties. /o^/^, /, £ 2- a -
Sheriff liable for the acts of his deputy, whom he may appoint orally: 3 Ga., 2;
1/588. The Sheriff and his sureties are liable on a voluntary bond for the acts of his depu-
ties: 9 Ga., 314; 15/423. When not liable for deputy's acts: 33 Ga., 585. Evidence of
original appointment presumed from subsequent acts of ratification: 11 Ga., 423.
Judgment against the Sheriff for his deputy's conduct when such deputy and sureties
concluded thereby: 10 Ga., 158. Sureties on deputy's bond can plead anything the
principal could : 13 Ga., 389. Deputy sheriff may appoint a bailiff to do a particular act:
17 Ga., 497. Mustpursue the Sheriff where his deputy pays over the money to him : 38 Ga.,
575. Sureties on deputy sheriff's bond holding on to property mortgaged to secure
them: 11 Ga., 669. A special deputy de facto may be made by "the Sheriff appointing
a constable to so act : 61 Ga., 272. Sheriff not liable for money loaned by attorney to
92 PART I.— TITLE V.— CHAPTER VI.
Sheriffs and their duties.
deputy sheriff: 59 Ga., 180. United States Marshal alone liable for his deputy's neglect
of duty: 59 Ga., 432.
Liability for deputy's acts: 2 Am. D., 438; 11/139; 17/549; 20/218; 9 C. L. J., 322.
Torts: 11 Am. D., 145, n. Deed by: 19 Am. D., 586; 21/306. Sale by : 15 Am. D., 41.
When may act after expiration of term : 15 Am. D., 44, n. Process, how signed by : 26
Am. D., 414, and n, 415. Sureties of: 17 Am. D., 549.
§356. (392.) (331.) May appoint jailers. They are, by virtue of their
offices, jailers of the counties, and have the appointment of jailers,
subject to the supervision of the Ordinary, as prescribed in this Code,
Duty where jail is unhealthy : 25 Am. E., 397.
§357. (393.) (332.) Jailers must take oath. Before entering on the
duties of their office, such jailers must give to the Sheriff bond and
surety for the sum of one thousand dollars, conditioned for the faithful
performance of their duties as jailers, and shall take and subscribe
before the Ordinary of the county the following oath, viz. :
" I do swear that I will well and truly do and perform, all and singu-
lar, the duties of jailer for the county of , and that I will
humanely treat prisoners who may be brought to the jail of which I
am keeper, and not suffer them to escape by any negligence or inatten-
tion of mine. So help me God. "
§358. (394.) (333.) Bond and oath recorded, etc. Such bond and oath
must be filed and recorded as those of a Sheriff's deputy.
f - aL _ §359. (395.) (334.) Persons committed under authority oj 'the United States.
Ly&ijz->**-*£ / r^*-*-*^ shall be the duty of the keepers of the several jails within this State
ic.o/\ '/?$*# J* ^° receive into their respective jails, and safely keep therein, all pris-
/ oners committed under the authority of the United States, under the
like penalties and subject to the same action as in the case of prisoners
committed under the authority of this State.
§360. (396.) (335.) Liable for misconduct of Jailer. Sheriffs are liable
for the misconduct of the jailer, as they are liable for ther deputies, and
persons injured by the jailer have the same option in suing the jailer's
bond that they have in suing the deputy's bond.
Sheriffs sureties on his bond were not formerly liable for the jailer's misconduct:
15 Ga., 423.
§361. (397.) (336.) Duties, etc. It is the duty of the Sheriff:
1. To execute and return the process and orders of the Courts of
Act of 1799, record in this State, and of officers of competent authority, if not void,
Act aFikio, with due diligence, when delivered to them for that purpose, according
c - p - 5 J1\J to the provisions of this Code.
Act of 1818, L
a' P ' f 5 ?«9o Where property sold under execution, and the Sheriff did not make a proper return
Cv 480 °^ P roces s : 9 Ga., 310. Sheriff is liable for a false or fraudulent return: 7 Ga.,187.
Act' of 1823, Deputy may attend on the Court in Sheriff's stead:' 17 Ga., 497. Due diligence re-
C. p. 512. ' quired as to process : 37 Ga., 604. Wben Sheriff levies at his peril and can only seize
Acts of 1853 defendant's property: 60 Ga., 518. Section cited: Commissioners vs. Cox, (Pamph.,
4, p. 28. Feb., 1880, p. 8.)
Failing to execute process : 5 Am. D.,28; 14/603; 26/631; 21/62; 23/324; 23 Am. R,
769; Ga. Dec, part II., 219. Diligence required in levying writs: 12 Am. D., 203, n.
Diligence required of. generally: 14 Am. D., 456, n. Defense by, in action for failure
to sell: 20 Am. D., 218.
•
2. To attend upon all sessions, by themselves or deputies, of the Supe-
rior Courts of the county, and the Court of Ordinary, whenever required
by the Ordinary, and never to leave said Courts while in session
without the presence of one or both of said officers, if required, and to
attend in like manner at the place of holding an election at the county
site, on the day of an election, from the opening to the closing of the
polls, and to take under their charge all under officers present, as a.
police to preserve order.
3. To publish sales, citations and other proceedings as required by
law, and to keep a file of all newspapers in which their official adver-
PART L— TITLE V.— CHAPTER VI.
93
Sheriffs and their duties.
tisements appear, in the manner required of Clerks of'the Superior §3647,
Courts.
4. To keep an execution docket, wherein they must enter a full de-
scription of all executions delivered to them, the dates of their deliv-
ery, together with all their acts and doings thereon, and have the same
ready for use in any Court of their county.
Section cited : 49 Ga., 576-8.. Such docket as evidence : 30 Ga., 823 ; 48/581. Entry
of payment on this docket is good evidence : 48 Ga., 581.
5. To keep a book in which shall be entered a record of all sales
made by process of Court, or by agreement of parties under the sanc-
tion of Court, describing accurately the property and process under
which sold, the date of the levy and sale, the purchaser and price.
6. To receive from the preceding Sheriff all unexecuted writs 'and |§2fi24. 2627,
process, and proceed to execute the same ; to carry into effect any levy '
or arrest made by a predecessor ; to put purchasers into possession, and
to make titles to purchasers at his sales, when not done by him.
Defendant cannot make preceding Sheriff's sureties liable, when : 2 Ga., 248. Suc-
cessor of Sheriff may make titles to purchaser without an order of Court: 7 Ga., 264.
Crocker on Sheriffs, p. 272.
7. To take from preceding Sheriffs custody of the jail and the bodies
of such persons as are confined therein, with the precept, writ or cause
of detention.
8. To furnish prisoners with medical aid, fire and blankets, to be re-
imbursed, if necessary, from the county treasury, and to suffer a pen-
alty for neglect, as prescribed in this Code.
9. To take all prisoners arrested, or in execution under any criminal §4741,
or civil process, to the jail of an adjoining county, or to the jail of some
other county when more accessible, if the jail of the county is in an
unsafe condition, under such rules as are prescribed in this Code.
10. To perform such other duties as are or may be imposed by law, or
which necessarily appertain to their offices.
§362. Sheriff's may administer oaths. [Sheriffs and their legal deputies, (a) Act of
in this State, may administer oaths in all cases where in discharge of i8?:i Fe "'
the duties of the office of Sheriff, it may be legal for them to take bond
and security, or any affidavit which (by law) suspends the further exe-
cution of process in their hands, and said oaths, when so taken, shall
be as legal and binding and subject to the same penalt}^, as to perjury,
as oaths are when administered by any other officer in the State.] (a.)
§363. (398.) (337.) Boobs deposited. All books the Sheriffs are required
to keep, after becoming full, must be deposited in the office of the Clerks
of the Superior Courts, to be kept as their other books of record.
§364. (399.) (338.) Can not purchase at his own sale. No Sheriff or dep- Act ons^o,
uty or other officer discharging a similar duty, will be permitted to pur- ' p ' '
chase any property whatever at his own sale, upon his own bid, nor
upon the bid of any other person for him, directly or indirectly ; and
all such sales and deeds in pursuance thereo , intended to vest in such
officer the title to the property so purchased, shall be null and void.
Stated: 9 Ga.
52 Ga., 343.
164. Discussed : 60 Ga., 227. Inconsistent duties cannot be assumed :
33696.
§365. (400.) (339.) Fees. Sheriffs are only entitled to such fees or^f*^
compensation as the law prescribes, or upon an omission of the law, to
such reasonable compensation as the [grand jury] (a) shall aw^rd;
and where they use property themselves, or hire it out after being levied
upon, they are not allowed a per diem allowance for diet, and are liable
to the proper party for the hire received.
Reasonable compensation where the law does not prescribe the amount : 37 Ga., 606.
94 PART L— TITLE V.— CHAPTER VI. •
Sheriffs and their duties.
§366. (401.) (340.) Defaulting Sheriffs. If any Sheriff or deputy fails
to comply with the provisions of section 361, he shall be fined for a
contempt, as the Clerk of the Superior Court is in similar cases. Sec-
tion 272 also applies to Sheriffs.
§366 (a.) Record of prisoners to be kept The Sheriff of each county in
Acts of 1877, this State shall keep, in a well-bound book, provided for that purpose,
a record of all persons committed to the jail of the county of which
he is Sheriff, which record shall contain the names of persons .commit-
ted, age, sex and color, under what process committed, and from what
Court issued, the crime charged, the date of commitment to jail, and
the day of discharge, and under what order discharged, and the Court
from which it issued; and which book shall, at all times, be subject to
examination by any person, and the Sheriff shall keep the book on file
in his office : Provided, that in the county of Richmond the book shall
be kept by the jailer, and which shall be kept as provided for Sheriffs,
except that it be kept in the jail.
§366. (b.) Grand Jury to inquire into record. It shall be the duty of the
p c m° f1877 § ran d jury, at each term of the Court held in the county, to inquire
into the contents of the record kept, and if not kept, or if incorrectly
kept, they shall so report to the Court, and upon such report being made,
the Judge presiding shall cause the Solicitor-General to have the Sheriff
served with a rule, requiring him to show cause why he should not be
published for contempt ; and the Judge shall inquire into the facts, and
if he shall find that this law is not complied with, he shall impose a
fine of not less than twenty-five, nor more than fifty dollars for the first
offense, and he is authorized to fine him not more than one hundred
dollars and not less than fifty dollars for each subsequent offense, which
fine shall be enforced and collected by attachment, as in other cases of
attachment against Sheriffs, as provided in the Code.
General Note. — The Sheriff is not a judicial officer, and as to an appearance bond
given to a Sheriff in a criminal case : 4 Ga., 329. Imprisonment by the Sheriff until
recognizance given by the offender : 35 Ga., 180. When Sheriff cannot enter credits on
fi. fa. by authority of letters from plaintiff 's attorney : 5 Ga., 449. Statute of limita-
tions commences to run in his favor, when : 9 Ga., 413. Must execute tax fi. fas. : 11
Ga., 79. Cannot agree to receive anything but cash without permission: 19 Ga., 298.
May take assignment of fi. fa. from plaintiff under section 3597 : 20 Ga., 637. Sheriff
protected when he, by defendant's order, pays defendant's money on a debt not enti-
tled to it: 22 Ga., 307. No right to collect money from defendant until fi. fa. issues:
25 Ga., 646. Sheriff not protected when he deposits money in a bank that fails: 27
Ga., 228. Liable for money stolen : 30 Ga., 628. Ignorance of law does not excuse : 32
Ga., 362. How to recover property levied on in possession of assignee of bankrupt : 39
Ga., 662. Claim interposed to one of several fi. fas. against the same defendant does
not excuse in not proceeding with the others: 30 Ga., 878. Sheriff different from a
receiver of Court: 63 Ga., 434.
General Note on Sheriffs. — Actions against : 2Gr. Ev., §580; Crocker on Sheriffs,
p. 369. Ag-ent for the plaintiff, to what extent: 16 Am. D., 595. Liable for wrongful
arrest, when: 19 Am. D., 491* n. Attachments against, for contempt: Crocker on
Sheriffs, p. 348. Bonds taken by: Crocker on Sheriffs, p. 345. Cannot prejudice
plaintiffs rights by compromise : 16 Am. D., 595. Damages against, measure of:
Sedg. Dam., 632. Deeds by, on deputy's sale: 17 Am. D., 549. After expiration of
term: 7 Am. D., 726; 12/301. Deputy may execute: 19 Am. D., 588, n. Effect of, by
, relation: 15 Am. D., 248, n. Is necessary to convey title: 15 Am. D., 252, n. Made
after suit brought to recover property : 15 Am. D., 252, n. De facto, acts of, are valid,
when: 1 Am. D., 207. Sureties of: 20 Am. D., 294. Action against, for false return
on fl. fa., judgment must be shown to warrant execution: 20 Am. D., 80. Cannot use
writs to indemnify himself: 5 Am. D., 287. Indemnity, when may demand : 16 Am.
I)., 548, and full note, 551. Taking indemnity from defendant and satisfying^, fa,:
26 Am. D., 166. Cannot detain money received by him in official capacity to pay indi-
vidual debt: 21 Am. D., 645. Has an insurable interest in property levied on: 20
Am. D., 516, n. Interest, not liable for, when money tied up by order of Court: 15
Am. D., 589. Cannot file inter-pleader, but must pay money into Court: 19 Am. R.-
754. When must follow instructions: 14 Am. D., 457, n. Levy: see note follow,
ing §3645, and see notes on "trespass" below. Liable for failure to give proper
notices at sale: 13 Am. D., 333. For value of goods sold on execution, though the
price was not received: 6 Am. D., 264. Statute of limitation cannot be pleaded by, as
to money which was payable immediately: 17 Am. D., 195. Legislative control of
PART I.— TITLE V.— CHAPTER VII.
95
Article 1. — Attorney-General.
office: 7 Am. R., 84, note 87; 6/754. Officers whose duty it is to make arrest can not
recover reward therefor: 26 Am. R., 5, n. See further general note under " Principal
and Agent." Sales : see notes following #3656, and Crocker, p. 231, 234. Where defects
in title are known to him : 14 Am. D., 131, n. His power to adjourn sales : 14 Am. D.,
457, n. Surrendering- property levied on toclaimant: 24 Am. R., 788. Transfer of
execution to Sheriff: 21 Am. R., 489. Of judgments: 6 Am. D., 46. Trespass of
officer, plaintiff in execution, when liable for: 20 Am. R., 519. Levying on property
of stranger: 12 Am. D., 394, n. Rights and duties in executing process : 1 Sm. L. C,
188; 25 Am. D., 167, 171. Strangers aiding officer at his request: 25 Am. D., 548.
Sheriff may break open doors to execute process, when: 1 Sm. L. C, 183; Broom's
Leg. Max.,' 421; 25 Am. D., 167. Property sold without authority: 20 Am. D., 218.
Windows and doors cannot be broken by, to serve civil process : 11 Am. D., 762. Abuse
of process, trespass ab initio : 14 Am. D., 365, full note; 1 Sm. L. C, 216. Must be posi-
tive act, not mere non-feasance : 14 Am. D., 366. What constitutes such abuse : 14 Am.
D., 365-369; 2/438; 20/218. Justification of, by his process: 21 Am. D., 190-209, full
note ; 25 Am. D., 600 ; 23/693. Forfeiture of, by his conduct: 21 Am. D., 205. Waiver
of: 21 Am. D., 204. Ministerial officer acting under process fair on its face and issuing
from a tribunal or person having judicial powers, with apparent jurisdiction to issue
such process, is protected: Cooley Torts, 459; Bigelow L. C. Torts, 277 ; 21 Am. D., 190.
Extends to assistants: 21 Am. D., 209; 25/548. Irregular process: 23 Am. D., 393.
Generally: see Sewell on Sheriff; 2 Thomp. Neg., 825; Shear. & R. Neg., 609; Whart.
Neg., #289 ; 10 C. L. J., 81. Trespass by Sheriffs : Cooley Torts, 392-398. Justification
by process : Cooley Torts : 459-470.
CHAPTER VII.
STATE S ATTORNEY AND ATTORNEYS AT LAW.
Article 1. — Attorney-General.
Article 2. — Solicitors- General.
Article 3. — Attorneys at Law.
ARTICLE I.
ATTORNEY-GENERAL.
Section.
367. The Attorney General.
368. How and when appointed.
369. His duties enumerated.
Section.
370. Services of how obtained.
371. May render service anywhere.
§367. (402.) (341.) There shall be an Attorney-General of the State, const, of
who shall be elected by the people, at the same time, for the same term, s 877 'io rt ' 6 '
and in the same manner as the Governor. i. ec * ' par '
§368. Changed by Constitution of 1877, Art. 6, Sec. 10, par. 1.
[Sec. (403.) Repealed by Constitution 1868, Art, 5, Sec. 7.]
§369. (404.) (343.) Duties, etc. It is the duty of the Attorney-Gen- Act of 1799,
eral [when required so to do by the Governor] — (c.) c - p- 574 -
1. To give his opinion in writing, or otherwise, on any question of (C ) Act of
law connected with the interests of the State, or with the duties of 18 £ Feb -'
any of the departments. 1873,
2. To prepare all contracts and writings in relation to any matter in
which the State is interested.
3. To attend, on the part of the State, to all criminal causes in any
of the Circuits, when the Solicitor-General thereof is prosecuted, and
to all other criminal or civil causes to which the State is a party.
4. It shall be the duty of the Attorney-General to act as the legal Const, of
adviser of the Executive department, to represent the State in the i 877 '^* 6 '
Supreme Court, in all capital felonies, and in all civil and criminal 2. ec "
96
PART I.— TITLE V.— CHAPTER VII.
Article 2.— Solicitors-General.
cases in any Court when required by the Governor, and to perform such
other services as shall be required of him by law. •
§370. (405.) (344.) May be required to attend Circuits. When the ser-
vices of such Attorney-General shall be needed in either of the judicial
Circuits, the presiding Judge thereof shall notify the Governor twenty
days before of the time, place, and cause, and the Governor may (in his
discretion) order the Attorney-General to comply, unless the law in the
case presented makes it his imperative duty to do so.
§371. (406.) (345.) Comptroller- General may require his services. It is in
the discretion of the Comptroller-General to require the Attorney-Gen-
eral, when the services of a Solicitor-General are necessary, in collecting
or securing any claim of the State, in any part of the State, either to
command the services of said Attorney-General in any and all of such
cases, or of the Solicitors-General in their respective Circuits.
ARTICLE II.
SOLICITORS-GENERAL.
Section.
372. Solicitor-General, appointment, etc.
373. His oath.
. 374. Vacancy, how filled.
375. His qualifications.
376. On the same footing as the Jndge.
377. His special duties enumerated.
378. May he ruled as attorneys.
379. Failing to attend Court.
Section .
380. May nol. pros, indictments.
381. Penalty for exacting illegal costs.
382. Who must certify such proceedings.
383. Tampering with grand jury.
384. May be appointed by the Court.
385. An attorney so appointed.
386. Charges against Solicitor-General.
Const, of
^pa?: except
Sec
I and Sec
§372. (407.) (346.) Election and term of Solicitors- General. There shall
be a Solicitor-General for each Judicial Circuit, whose official term,
when commissioned to fill an unexpired term, shall be four
years. He shall be elected by the General Assembly, in the manner
provided elsewhere in this Code.
§373. (408.) (347.) Oath. Before entering on the duties of their offices,
beside the oaths required of all civil officers, they must, in addition,
take the following, viz :
" I do swear that I will faithfully and impartially, and without fear,
favor or affection, discharge my duties as Solicitor-General, and will
take only my lawful fees of office. So help me God."
And must also give such bond and surety as is required of the soli-
citor, who, by virtue of his office, is Attorney-General.
§374. (409.) (348.) Vacancy. Vacancies occur and are filled as pre-
scribed in cases of the Judges of the Superior Courts, and the manner
of proceeding is in every respect the same.
§375. (410.) (349.) Qualifications. No person is eligible to the office
Acts of 1877, of Solicitor-General who has not been a resident citizen of this State
ictof isso, three years just preceding his election or appointment, [and who does
c - p- io 36 > ' not permanently reside in the Circuit at the time of his election or ap-
1865, c.,p. pointment,] (a) and who has not attained the age of twenty-one years,
and who has not been duly admitted and licensed to practice law in
the Superior Courts of this State for at least three years.
§376. (411.) (350.) On same footing as Judge. A person having been
appointed or elected a Solicitor for any Circuit is on the same footing
of a Judge of the Superior Court, as set forth in section 230 (as to retain-
ing his office).
§377. (412.) (351.) Duties. Their duties within their respective Cir-
cuits are —
1. To attend each session of the Superior Courts, regular or adjourned,
unless excused by the Judge thereof, and remain until the business of
the State is disposed of.
22.
PART I.— TITLE V.— CHAPTER VII.
Article 2.— Solicitors-General.
2. To attend on the grand juries, advise them in relation to matters Act of 1999,
of law, and swear and examine witnesses before them. Act of 7 i823,
3. To administer the oaths the laws require to the grand and petit c. p. 1025.
jurors, to the bailiffs or other officers of the Court, and otherwise to c. p. 1027.
aid the presiding Judge in organizing the Courts as he may require. Jp^/ 836,
4. To draw up all indictments or presentments, when requested by Act of 1845,
the grand jury, and to prosecute all indictable offenses. Ac&ofiaa
5. ^0 prosecute or defend any civil action in the prosecution or -4, p. 108.
defense of which the State is interested, unless otherwise specially pro- g§207::, 3254.
vided for.
6. To attend before the Supreme Court when any criminal cause is Const, of
tried emanating from their respective Circuits, argue the same, and g|c!'io, '''
perform any other duty therein the interest of the State may require, par. 2. '
7. To collect all moneys arising from fines and for forfeited recogniz-
ances, all costs on criminal cases when paid into Court before judgment
and not otherwise; and at the Fall term of each Court, every year, to
settle with the County Treasurer, and pay over to him all moneys due
him according to law, after a fair and full settlement.
8. To settle at the same time with the presiding Solicitor, and pay
over to him any moneys collected to which he may be entitled, and to
render to him, whenever required by him, a just statement of the con-
dition of his interests.
9. To collect all moneys due the State in the hands of any escheators,
and pay over to the educational fund ; and, if necessary, -compel them
to pay by rule or order of Court, or other legal means.
10. To collect all claims of the State they may be ordered to do by
the Comptroller-General, and to remit the same within thirty days after
collection ; and on the first day in October every year to report to him
the condition of the claims in their hands in favor of the State, partic-
ularly specifying the amounts collected and paid, from what sources re-
ceived and for what purposes; to whom paid, what claims are unpaid,
and why ; what judgments have been obtained, when, and in what
Court ; what suits are instituted, in what Courts, and their present pro-
gress and future prospects.
11. To perform such other duties as are or may be required by hi w. v
or which necessarily appertain to their office, .^r/r -*rT_<i> /- ^/c^cL *<^~ •£*-
§378. (413.) (352.) May be ruled. If a Solicitor-General fails to coM-<3*^^ *L>,£& Pf
ply with the provisions of the preceding section, he is liable to rule as <£e-*^-Z^,/fZ>$.' : ?t
attorneys at law are, with all the penalties and remedies ; and on fail-
ure to comply with the terms of a rule absolute, within twenty days
from the time it becomes final, it shall be a ground of impeachment.
§379. (414.) (353.) Failing to attend Court liable to fine. If he fails
to attend on the Courts of his Circuit as required, he is liable to be
fined for each failure fifty dollars, to be retained out of his salary.
§380. (415.) (354.) Nolle pros. He has authority, on the terms pre- 84696.
scribed by law, to enter a nolle prosequi on indictments ; and if, in any
case, a Solicitor-General accepts, directly or indirectly, in money or
other valuable thing, or exacts more than his lawful costs from the de-
fendant or any body else, it is a subject matter of investigation by the
grand jury.
No nolle prosequi without consent of the defendant after the case has been submitted
to the jury: 2 Ga., 60. Before the jury is empaneled can be entered at the pleasure of
the Solicitor-General : 3 Ga., 53. Can with Court's consent, if case not submitted to
the jury : 9 Ga., 306. Where there was no legal jeopardy, and it was not too late to
nol. pros. : 34 Ga., 323. When it must be made in the presence and with the knowledge
and consent of the Judge: 41 Ga., 507.
§381. (416.) (355.) Cost, illegal receipt of. If the grand jury presents
the Solicitor for having so received more than his legal costs, he shall
be disqualified from further discharging his official duties until a trial
98: PART I.— TITLE V.— CHAPTER VII.
Article 2. — Solicitors-General.
•
shall be had upon an indictment, and if the trial results in a convic-
tion, he shall be fined and imprisoned at the discretion of the Court,
and it is a ground of impeachment. The disqualification continues
until the adjournment of the next session of the General Assembly.
§382. (417.) (356.) Governor to be notified. It shall be the duty of the
clerk of said Court to certify immediately such proceedings to the Gov-
ernor.
§383. (418.) (357.) Penalty for talcing or agreeing to take a bribe, etc. If
Actsof 1876, they (Solicitors-General) take, or agree to take, from any person, money,
or any other valuable thing, the consideration whereof is a promise
or undertaking to procure, or try to procure, a finding by the grand jury
of "a bill" or "no bill" upon an indictment, or to make, or not to
make a presentment, or to prolong, or to procrastinate, a State case, or
an arrest, or to advise it done, or how it may be done, or if they advise
or suggest to a party against whom a bill of indictment or present-
ment has been found, to plead guilty, or if they agree or promise to
any such party to intercede with the Judge of the Court for leniency,
in case of such plea of guilty, the penalty and proceedings shall be the
same as in sections 381 and 382 of the Code.
§384. (419.) (358.) Solicitors-General, pro tern. When a Solicitor is
Act of 1799, absent or indisposed, or disqualified from interest or relationship, to
' p ' ' " engage in a prosecution, the presiding Judge must appoint a compe-
tent attorney of the Circuit to act in his place, or he may command the
services of a Solicitor-General of any other Circuit accessible, or he
may make a requisition on the Governor, for the Attorney-General, as
the emergency in his discretion may require.
May be appointed by the Court when the Solicitor-General prevented by sickness or
other malady, mental or physical: 22 Ga., 212-232. Court's discretion governs as to
appointing a pro tern. Solicitor on account of the interest of the Solicitor-General: 41
Ga., 507.
§385. (420.) (359.) Fees of Solicitor, pro tern. An attorney acting as
such Solicitor, is subject to all the laws governing Solicitors-General;
he is entitled to the same fees for what he does, and incurs the same
penalties in the discharge of his duties.
§386. (421.) (360.) Proceedings where Solicitor is prosecuted. When any
person makes affidavit before the Court or grand jury, that in his judg-
ment the Solicitor-General is guilty of an indictable offence, and that
he desires to prosecute him, or the grand jury may present him for
such an offense, it is the duty of the Court instanter to appoint some
competent attorney at law to draw a bill of indictment, and when there
is a true bill found, or presentment made, to put the Solicitor under re-
cognizance or in prison, according to the offense, until the appearance
of the proper prosecuting officers.
General Note. — Cannot be counsel for defendant against whom, while in office, he
instituted a prosecution: 11 Ga., 47. May take any place on the side of the State in
argument before the jury: 15 Ga., 476. Act of 1850, (C. p. 280) rendering attorneys
incompetent to testify, etc., does not apply to the Attorney-General : 26 Ga.,614. Pre-
sumption as to tax fi. fas. delivered to hjmi: 27 Ga., 69.
PART L— TITLE V.— CHAPTER VII.
99
Article 3. — Attorneys at law.
ARTICLE III.
ATTORNEYS AT LAW.
Section.
387. Attorneys at law.
388. High ts of persons admitted.
389. Qualifications of applicant.
390. Aliens.
391. Application for admission.
392. Evidence of preparation.
393. Must be examined.
394. The manner of examination.
395. Examination not satisfactory.
396. Order of admission.
397. Form of the oath to be taken.
398. Graduates of Lumpkin Law School.
399. Attorneys of other States.
400. Order of the Court necessary.
401. Prohibited in certain cases.
402. Attorneys removing to this State.
403. How admitted in the Supreme Court.
404. Failing to render the service.
405. Transferring fee note.
406. The rule for settling fees.
407. Attorneys may be ruled.
408. May bind their clients — when.
409. Can receive nothing but money.
410. Parties acting by advice of attorneys.
Section.
411. Appearing without authority.
412. Penalty therefor.
413. Required to produce authority.
414. When two are employed.
415. Leading counsel defined.
416. If more than one, preference given.
417. Special duties of attorneys.
418. Causes for striking an attorney, etc.
419. May be reinstated, and how.
420. Proceedings against attorneys.
421. Accusation must be in writting.
422. Proceedings must be under oath.
423. Requiring the accuser to appear.
424. Appearance.
425. Answer.
426. Lf objections be overruled.
427. Plea of guilty, or refusal to answer.
428. The judgment and effect thereof.
429. Proceedings instituted by the Court.
430. The attendance of witnesses.
431. Costs, how taxed and collected.
432. Death of the informant.
433. Jury may find proceedings malicious.
434. Failing to pay tax, how dealt with.
§387. (422.) (361.) Attorneys, who may practice. The following per-
sons, if not specially declared ineligible, are entitled to practice law in
the Courts of this State :
1. Those who have been regularly licensed under laws of the State
before the adoption of this Code.
2. Those who are hereafter licensed in the manner prescribed by law.
§388. (423.) (362.) Attorneys admitted in the Superior Courts. Those who
are admitted to practice in the Superior Courts may practice in any
other Court of this State, except the Supreme Court, for which another
and special license must be obtained.
See rules 1, 2 and 3 of the Supreme Court: 38 Ga., 687.
§389. (424.) (363.) Qualification of applicant.
Any male citizen, of Act of lsoe..
good moral character, who has read law and undergone a satisfactory Act of 9 i847
examination before a Judge of the Superior Court, as hereinafter pre-c.p.92..
scribed, is entitled to plead and practice law in this State.
"Male:" Weeks on Attorneys, $40; 20 Am. R., 42. "White male/' restriction
constitutional: 30 Am. R., 451. Admission, powers of Congress as to: 4 Wal., 333;
16/130. Resident of the State : 20 Am. R., 55.
§390. (425.) (364.) Aliens. Aliens who have been two years resident
in the State, and have declared their intention to become citizens, pur-
suant to the Act of Congress, are eligible to admission as attorneys at
law.
§391. (426.) (365.) Application for admission. For the purpose of ad-
mission, one must apply, by petition in writing, to a Superior Court
during one of its sessions, in a Circuit of which he is resident, or has
read law therein, and must show —
1. His citizenship.
2. That he is of good moral character.
3. That he has read law.
4. That he has been a resident of, or has read law in, the Circuit as
aforesaid.
§392. (427.) (366) Evidence of preparation. The evidence of such facts
must be by certificate of two attorneys of the Court, or of other evidence
satisfactory to the Court.
§393. (428.) (367.) Examination of applicant. The applicant must
also be examined in open Court, touching his knowledge —
100 PART L— TITLE V.— CHAPTER VII.
Article 3. — Attorneys at law.
1. Of the principles of the common and statute law of England of
force in this State.
2. Of the law of pleading and evidence,
3. The principles of equity, and equity pleading and practice.
4. The Revised Code of this State, the Constitution of the United
States and of this State, and the rules of practice in the Superior
Courts.
§394. (429.) (368.) Manner of examination. No portion of such exam-
ination must take place out of open Court; and to enable the Judges
to have proper examination, they are required, if there is not ample
Itime during a term, to appoint a time, at least twice a year, at some
neounty site in their respective Circuits, which has a bar of attorneys
sufficient in numbers and qualifications to conduct the examinations,
.and, if necessary, to request and require the attendance of such attor-
neys from other places within the Circuit, of which appointment pub-
lic notice shall be given thirty days prior to said time in some public
gazette. Application for admission may be made to the Judge of each
Circuit (as otherwise required) at any time.
§395. (430.) (369.) Unqualified persons to be rejected. Such Judges are
required to be strict, and to reject any applicant who does not undergo
,a full and satisfactory examination.
§396. (431.) (370.) Mode of admission. If, on examination, the appli-
cant is found duly qualified in all the branches required, the Court
must direct an order to be entered on the minutes, that, being exam-
ined and found to possess the requisite learning and ability, and having
otherwise complied with all the conditions of the law, that, upon taking
the oath prescribed, that the clerk issue to him, on the payment of the
.fees and costs, a license to plead and practice law in the Superior
> Courts of this State.
For form of license, see 2d rule of Superior Court: 38 Ga., 674.
§397. (432.) (371.) Attorney's oath. The oath is as follows :
" I, , swear that I will justly and uprightly demean myself, ac-
cording to the laws, as an attorney, counselor and solicitor, and that I
will support and defend the Constitution of the United States and the
Constitution of the State of Georgia. So help me God."
Which oath must be taken in open Court, and entered on the minutes
thereof.
§398. (433.) (372.) Students of the Lumpkin Law School and Mercer Uni-
Acts of 1859, vers ity. None of the preceding requisitions are applicable to any grad-
p-' 84 - uade of the Lumpkin Law School, but upon a presentation of a diploma
P207. and payment of fees, the Court shall cause his name to be enrolled
Acts of among the attorneys. And any person having, from the proper author-
1875, p. 38. ities of Mercer University, in this State, a diploma of graduation in the
|1207. Law School of .said University, shall be authorized to plead and practice
n all the Courts of law and equity in this State, without further ex-
amination, upon payment of the usual fees, and upon the taking of the
oaths and receiving the license prescribed by law, and said graduates
shall have the same rights, privileges and liabilities as are conferred
and imposed by law on the graduates of the Law School of the Univer-
sity of Georgia.
§399. (434.) (373.) Lawyers from other States, how admitted. Attorneys
Act of 1823, at law residing in other States of the Union, having license to practice
Ac?'of 1831 l aw ixi a Circuit Court therein, where by law the attorneys of this State
c. p. 91. ' are permitted to practice law, may practice in the Superior Courts of
(q) Acts of this State [and by submitting to and undergoing such examination as
1875, p. 16. -to ^ e i aws f this State, as the Judge of the Superior Court where such
application is made may require] —
PART L— TITLE V.— CHAPTER VII. 101
Article 3. — Attorneys at law.
1. By presenting a petition in writing for such purpose to the Judge
of the Superior Court of any Circuit, either in term time or vacation.
2. By producing before him a certificate from a Judge of the Circuit
or District Court of the State Of which they are citizens, under the seal
of said Court, stating that the applicant is of good moral character, and
has been legally admitted to practice law in such Circuit, and that, by
the laws of such State, the attorneys of this State are allowed to prac-
tice law therein.
How in the Supreme Court, 1st rule of Supreme Court: 38 Ga., 687.
§400. (435.) (374.) Order of admission, On reading such petition and
certificate, such Judge shall grant an order that the applicant be ad-
mitted to practice law in this State, and shall order the Clerk of the Su-
perior Court of the county to enter it on his minutes and file the pro-
ceedings, on the payment of his legal fees; which, when done, is a
sufficient license.
§401. (436.) (375.) Lawyers from States that do not allow Georgia lawyers
to practice therein. Such attorneys at law of any State adjoining this
are not thus permitted to practice law herein, unless those of this State
are likewise permitted to practice law in their Courts.
§402. (437.) (376.) Lawyers from other States may be admitted, in this. Those (a) Acts of
attorneys at law of other States, who become residents of this 1875, p - 16 -
State, and do not come under the provisions of the preceding sections,
by producing to the Court satisfactory evidence that they were attor-
neys at law, in good standing, in a Court of similar jurisdiction in the
State from which they came, maybe immediately admitted to plead and
practice law in this State, [by submitting to and undergoing such
examination as to the laws of this State as the Judge of the Superior
Court, where the application is made, may require.] (a.)
§403. (438.) (377.) Lawyers, how admitted in the Supreme Court. Any at-
torney authorized to practice law in the Superior Courts of this State
is permitted to practice law in the Supreme Court —
1. By exhibiting to the Court proof of good private and professional
character; and otherwise complying with the terms of its rules.
2. By taking the oath prescribed.
First and second rules of the Supreme Court : 38 Ga., 687.
§404. (439.) (378.) Counsel employed failing to render service. Attorneys £ ct ofissi,
are prohibited from collecting any note or other contract in writing
given as a fee in any cause, which cause *they have failed to attend to
in person or by some competent attorney, from the time of employ-
ment until the rendition of judgment, and the same shall be null and
void unless they were, by contract, released from such duty.
§405. (440.) (379.) Transferring for notes or other obligations. The trans- Act of i83i,
fer of such notes or obligations subjects them to forfeit and pay to the c * p * yi "
person from whom the same was taken double the amount thereof, \-
recoverable in any Court having jurisdiction of the same, unless such*
person is saved harmless against all fees, costs, and other necessary
expenses on account thereof.
By Act of 1831, such notes are void, although in the hands of an innocent transferee,
if the attorney fails to see the case in judgment: 21 Ga., 195.
§406. (441.) (380.) Fees, how settled. Unless otherwise stipulated, one-
half of the fee in any cause is a retainer, and due at any time, unless
the attorney, without sufficient cause, abandons the case before render-
ing service to that value ; but in cases where he has rendered such
service, and can not render the balance of service — from the act of his
client, providential cause, election to office, or removal out of the State
— he is entitled to retain the amount, or a due proportion, if collected,
102 PART I.— TITLE V.— CHAPTER VII.
Article 3.— Attorneys at law.
or sue for it and collect it, if not ; where no special contract is made, the
attorney may recover for the services actually rendered.
Where special contract made : 39 Ga., 78-81. Has a lien superior to all other liens
on all property recovered for fees: 45 Ga,, 167. Must prove value of services to be able
to recover for fees: 45 Ga.. 171. Where a verdict giving fees was sustained by the evi-
dence : 47 Ga,, 405. Bringing money into Court, the trustee should pay own attorneys :
56 Ga., 264. Failure to recover in the suit is no bar to fees: 60 Ga., 217. When
trustee's attorney fees are not allowed: 32 Ga., 31-38; 56/264. Guardians allowed for
attorney fees in collecting ward's moneys : 29 Ga., 82-101. Client cannot dismiss suit
without paying attorney fees: 56 Ga., 279-281. Section cited; one-half of attorney
fees a retainer, and is due at once unless otherwise stipulated: 62 Ga., 136. When
employment by principal does not bind security for fees: 55 Ga., 470. Fee of counsel
is not included under the term costs and expenses : 56 Ga., 655-6. No one can satisfy a
judgment or execution until attorney's claim for fees settled : 53 Ga., 43. Fees by con-
tract: 50 Ga., 599. Contract for certain amount for fees if money collected, depends
on such collection: 55 Ga., 283. Attorneys have a lien on a suit for fees regardless of
client's desires in the matter : 63 Ga., 496. Counsel can prosecute a suit begun for their
fees : 63 Ga., 630. Where no counsel fees should be permitted by way of damages : 63
Ga., 242. Where fees were not champertous: 55 Ga., 283. When are : 57 Ga., 263.
Attorney's lien on the execution but not on the judgment for fees : 19 Ga., 85. Where
no fees by way of damages should have been permitted: 59 Ga., 797-8. Where fees
denied as against the holder of a draft sued on : 59 Ga;, 841-8. Cannot collect fees by
ruling his client: 34 Ga., 377. Fees cannot be included in the enforcement of a lien
on a crop: 57 Ga., 333; 49/604.
Fees: Weeks, §334-349; Abbot's Tr. Ev., 377. Champertous contracts: see note to
§2750; and lobbying services. lb. Where attorney dies before completion of service :
23 Am. D., 149. Death of client: 15 How., 415. Forfeiture of claim to, by fraud: 10
Am. D., 179. Funds in hands of receiver : 3 0., 352. Fees not recoverable on injunc-
tion bond: 17 Wal., 211. Special contract, damages for breach of: 23 Am. R.. 613.
Liability of husband for fees of wife's attorney: 9 Am. R., 175. When infant liable
for fees of : 20 Am. R., 160; Weeks, §342.
§407. (442.) (381.) Liability of attorneys to be ruled. Where attorneys
g3948. retain in their hands the money of their clients, after it has been de-
manded, they are liable to rule (and otherwise) as Sheriffs are, and incur
the same penalties and consequences.
Testing the right to fees by ruling the attorney: 55 Ga., 283-5-6. Cannot by rule
compel the attorney to perform a decree against his client : 56 Ga., 471, 571-2. Section
cited, and answer by attorney to rule can be traversed : 58 Ga., 223. Under a rule,
attorney permitted to set-off his fees against it : 58 Ga., 348. Attachment for contempt
against an attorney and his bankruptcy: Habeas corpus: 59 Ga., 523. Client may en-
force rule by fi. fa. or attachment: 58 Ga.. 121. Only ruled for the sum collected: 57
Ga., 525, 528.
§408. (443.) (382.) Authority to bind clients. They have authority to
g §3267, 3615. bind their clients in any action or proceeding, by any agreement in
relation to the cause, made in writing, and in signing judgments, enter-
ing appeals, and by an entry of such matters, when permissible, on the
dockets of the Court, but they cannot take affidavits required of their
clients unless specially permitted by law.
Attachment affidavit, sufficiently sworn to by attorney for client, when states posi-
tively as to the debt: 7 Ga., 167. Attachment affidavit by attorney should be positive
that debtor resides out of the State : 9 Ga., 598. Attorney's affidavit for attachment
should be positive as to the grounds : 28 Ga., 351. Notary Public also attorney cannot
qualify his client to attachment affidavit : 37 Ga., 678-681. Affidavit in forma pauperis
to entitle a party to appeal cannot be made by his attorney : 25 Ga., 262-3. Affidavit
to foreclose mortgage by attorney should recite that he is counsel for mortgagee : 39 Ga.,
312. As to entering an appeal when ratified by the principal : 6 Ga., 92-99; 9/487. May
refer cause to arbitration under sanction of the Court, the client not consenting thereto :
31 Ga., 2-3. Cannot release a witness for his client without being specially authorized :
33 Ga., 49. Confessions of judgment by attorney presumed to be by authority: 36
Ga., 108. Confessions of judgment by attorney set aside by Court on proof of want
of authority: 39 Ga., 394. Where client knows of the confession of judgment by his
• attorney, sufficient: 42 Ga., 168-171. Attorney cannot for client make the affidavit
provided in section 4056: 48 Ga., 351. Section cited and discussed: 50 Ga., 248. Affi-
davit before attorney's clerk valid: 50 Ga., 426-434. Where one acting as defendant's
counsel could not bind plaintiff: 57 Ga., 447. Affidavit probating mortgage before
mortgagee's attorney illegal: 46 Ga., 253-7. Cannot release defendant's property
from the lien of a judgment: 56 Ga., 617. Payment by attorney to agent of plaintiff
releases the attorney: 59 Ga., 562. Married woman controlled by her attorney's agree-
ment relating to her separate estate : 60 Ga., 189-191.
PART I.— TITLE V.— CHAPTER VII.
108
Article 3. — Attorneys at law.
Authority : Weeks, $215-256 ; Ewell Evans A., 129, 130. 132 ; 16 Am. D., 780 : 12/577 ;
15 Am. R., 72; 5 Pet., 99. To receive payment on fi. fa. : 8 Pet., 18. To buy for client
at judicial sale: 6 Wal., 157; 6 Am. D., 386. May submit cause to arbitration : 7 (Jr.,
436. No authority to enter a retraxit: 18 Am. D., 149. Nor to release client's judg-
ment, without his consent: 30 Am. R., 357, and n, 358. One co-defendant may em-
ploy an attorney for the other co-defendants, and the appearance of such an attorney
for all will bind all : 8 Am. R., 394.
§409. (444.) (383.) Limitations on authority. Without special au-§2S64.
thority, attorneys cannot receive anything in discharge of a client's
claim but the full amount in cash.
Where attorney was compelled to sue Sheriff: 34Ga.,173. Section cited and dis-
cussed : 53 Ga., 660. Failure of defendant's attorney to apply sum collected to plain-
tiff's debt, does not affect plaintiff: 57 Ga., 447. Section cited and construed: 62 Ga.,
42-6. Agent employing attorney for his principal can make a binding contract on his
principal as to terms of such employment: 59 Ga., 562.
Compromise: Weeks. §§394, 400-1; 7 Cr., 436; 10 Am. D., 179; 16/506; 19 Am. R.,
647; 36/261.
§410. (445.) (384.) Advice of attorney no relief to client. Clients shall
not be relieved from their liability to damages and penalties imposed
by law on the ground that they acted under the advice of their counsel,
but are entitled to redress from them for unskillful advice.
Evidence as to advice of, protects client, how. far, as showing motive, etc. : 14 Ga.,
27-32. Where the Sheriff's attorney's advice saved the Sheriff from loss; 39 Ga., 521.
Malicious prosecution, advice of counsel, while it does not protect entirely, yet miti-
gates damages: 55 Ga., 302, 297. Neglect of attorney only can prevent him from recov-
ering for fees: 60 Ga., 217. Getting out distress warrant for too large an amount, by
attorney's advice, does not relieve from liability: 54 Ga., 224-230.
Advice, evidence of: Abbot's Tr. Ev., 656. Of attorney personally interested, no
mitigation : 36 Am. R., 353. " Redress," etc. : Weeks, §$283-320 ; and see " negligence,"
in general note on this chapter.
§411. (446.) (385.) Party not bound by act of unemployed counsel. If it
be alleged by a party for whom an attorney appears that he does so
without authority, the Court may, at any stage of the proceedings,
relieve the party for whom the attorney assumed to appear from the
consequences of his acts, if fully satisfied such allegation is true.
What is sufficient evidence of an attorney's employment: 34 Ga., 328. Presumed
that an attorney's appearance is authorized: 36 Ga., 108. Judgment confessed by at-
torney will, on proof of his want of authority, be set aside : 39 Ga., 394. When cannot
readily set aside a confession of judgment by an attorney : 53 Ga., 491-3.
Weeks, §200; Abbot's Tr. Ev., 548; 5 Am. D., 237, and n, 245; 15/378, n; 2 Am. L.
(_;., 558.
§412. (447.) (386.) Unauthorized appearance is contempt. Any attorney §4475.
appearing for a person without being employed, unless by leave of the
Court, is guilty of a contempt of Court, and must be fined in a sum
not less than five hundred dollars.
§413. (448.) (387.) Proof of authority may be required. The presiding
Judge or Justice may, on motion of either party, and on showing rea-
sonable grounds therefor, require any attorney who assumes the right
to appear in the cause to produce or prove the authority under which
he appears, and to disclose, whenever pertinent to any issue, the name
of the person who employed him, and to grant any order that justice
may require on such investigation ; but, prima facie, attorneys shall be
held authorized to properly represent any cause they may appear in.
Required, when: 22 Am. D., 88. What proof sufficient: 16 Am. D., 98-100, 11.
Prima facie, 21 Wal, 453; Weeks, $196; 16 Am. D., 98, 11.
§414. (449.) (388.) When several attorneys are employed on th£ same side.
When two or more attorneys, being employed on the same side, dispute
about the direction to be given to their cause, and the client is not pres-
ent, the Judge shall hear all the facts and give preference to the leading
counsel.
104 PART I.— TITLE V.— CHAPTER VII.
Article 3. — Attorneys at law.
§415. (450.) (389.) Leading counsel. The leading counsel is he who,
at the time of the trial, or raising of any issue connected with the cause,
is, in the judgment of the Court, the counsel upon whom the client
relies more than any other.
The attorney whose name is subscribed to the pleadings, if not surreptitiously ap-
pended, is to be regarded as leading counsel : 33 Ga., 243.
§416. (451.) (390.) Counsel first employed. If there is more than one
upon whom the client thus relies, the Court shall, as between them,
give him preference who was first employed.
§417. (452.) (391.) Special duties enumerated.. It is the duty of attor-
neys at law —
Cannot take advantage of his own acts: 60 Ga., 53-56. When one of associate coun-
sel cannot take advantage of the other's absence : 61 Ga., 470.
1. To maintain the respect due to Courts. of justice and judicial
officers.
Commented on: 48 Ga., 498-500.
See note to §4711 ; 7 Wal., 364; 13/335; Weeks, §97; Wells' Jur., §178-197.
2. To employ, for the purpose of maintaining the causes confided to
them, such means only as are consistent with truth, and never to seek
to mislead the Judges or juries by any artifice or false statement of the
law.
3. To maintain inviolate the confidence and, at every peril to them-
selves, to preserve the secrets of their clients.
Section cited, and discussed : 59 Ga., 328.
'See note to §3798.
4. To abstain from all offensive personalties, and to advance no fact
prejudicial to the honor or reputation of a party or a witness, unless
required by the justice of the cause with which they are charged.
Latitude of speech permitted, but with certain limits: 18 Ga., 495-508. Counsel
protected for words used in argument, unless malice shown: 51 Ga., 119.
See note to §2980.
5. To encourage neither the commencement nor continuance of an
action or proceeding from any motives of passion or interest.
It is not champertous where attorney agrees to take certain percentage, but not to
be liable for costs: 55 Ga., 284. But otherwise where he was to pay costs as well as re-
ceive percentage : 57 Ga., 263; also Taylor vs. Hinton, pamph. February, 1881. p. 8.
Weeks, §§86-88, 121, 350, et *eq., and note to §2750.
6. Never to reject, for a consideration personal to themselves, the
cause of the defenseless or oppressed.
Referred to: 48 Ga., 350.
Refusing to defend prisoner, when appointed by Court, without fee, contempt: 9
C. L. J., 100.
Duties, generally : Weeks, §§257- 267 ; Warren on Duties of Attorneys; Sharswood's
Legal Ethics ; 14 Am. D., 172, and "negligence," in general note on this chapter.
§418. (453.) (392.) Special causes of removal. An attorney must be
removed for the following causes by the Superior Court of the county
of his residence :
1. Upon his being convicted of any crime, or misdemeanor involv-
ing moral turpitude. In either case the record of his conviction is con-
clusive evidence.
2. When any judgment or rule absolute has been rendered against
him for money collected by him, as an attorney, which he fails to pay
within ten days after the time appointed in the order, in which case
the record of the judgment is conclusive evidence, unless obtained
without any service under some law authorizing such a proceeding.
PART I.— TITLE V.— CHAPTER VII. 105
Article 3. — Attorneys at law.
3. Upon it being shown to the satisfaction of the Court that he has
been guilty of any deceit or willful misconduct in his profession.
4. For want of a sound mind, or for indecent behavior in or out of
the Court House, whereby he becomes a nuisance to* the Court, his
brother members of the bar, or the public.
Weeks, §81, et seq. ; 5 Am. R., 420; 1 C. L. J., 280; 8/250; 10/379: 9Wh.,529; 19
How., 9; 4 Wall., 433; 7/523; 19/505; 13/335. For contempt: 7 Wal., 364. Abusive
words to Judge out of Court : 13 Wal., 335.
§419. (454.) (393.) May be reinstated, and how. When an attorney at
law is thus removed, after the lapse of twelve months, (unless removed
under the first ground of the preceding section,) it is in order for him
to be restored upon the application of two-thirds of the members of the
bar of the county where he was removed, and of those who usually
practice in the Superior Court of said county, if approved by the Judge
of the Circuit.
Weeks, §82; 10 C. L. J., 498.
§420. (455.) (394.) Proceedings to remove an attorney. The proceedings
to remove an attorney may be taken by the Court of its own motion, or
upon the motion of an attorney at law, or other citizen.
Section cited, and a case of removal of an attorney : 63 Ga., 567.
§421. (456.) (395.) Must be in writing. The accusation must be in
writing, signed by the movant, or his attorney at law, and when the
proceeding is taken by the Court, it may be drawn up by the solicitor
or the clerk, under the direction of the Court.
§422. (457. (396.) Verified by oath, vohen. If the proceedings are upon
the information of another, the accusation must be verified by the oath
of the person making it, or some other person, and presented to the
Court.
§423. (458.) (397.) Order for appearance. The Court must then, if of
opinion that the accusation would, if true, be grounds of removal, make
an order requiring the accused to appear and answer the same at a
specified day during the same or at the next term, and must cause a
copy of the order and accusation to be served on the accused within a
prescribed time before a day appointed in the order.
§424. (459.) (398.) The accused must appear. The accused must appear
at the time appointed in the order, and answer the accusation, unless,
for sufficient cause, the Court assign another day for that purpose ; if he
does not appear, the Court may proceed and determine the accusation
in his absence.
§425. (460.) (399.) Answer of accused. The accused may answer,
either by objecting to the sufficiency of the accusation, or by denying
its truth — either of which must be entered on the minutes.
§426. (461.) (400.) Objections by the accused. If the objection to the
sufficiency of the accusation be not sustained, the accused must answer
it forthwith.
§427. (462.) (401.) Plea or refusal to answer. If he pleads guilty, or
refuses to answer the accusation, the Court must proceed to judgment
of removal ; if he denies the accusation, the Court must immediately,
or at such time as it may appoint, proceed to try the same — the accused
having a right to demand atrial by jury.
§428. (463. (402.) Effect of judgment. A judgment of acquittal is fi-
nal, but from a judgment of removal there may be a motion for a new
trial, and a review by the Supreme Court, as in other cases.
Pending review, rights not restored: 8 C. L. J., 358.
§429. (464. ) (403. ) Proceedings, by tvhom instituted. The proceedings,
when instituted by the Court of its own motion, are conducted in the
106 PART L— TITLE V.— CHAPTER VII.
Article 3. — Attorneys at law.
name of the State — the Solicitor appearing to sustain the accusation —
and when on the information of another, in the name of the State on
the information of such person.
§430. (465.) (404.) Witnesses compelled to attend. Either party has a
right to subpcenas and other process to compel the attendance of wit-
nesses, and testimony may be taken by deposition in such cases and in
the same manner as in actions at law, and the Court may, in its discre-
tion, require the informant to give security for cost ; and failing so to
do within the time prescribed, the proceedings must be dismissed at
the cost of the informant.
§431. (466.) (405.) Costs, how taxed and collected. When the proceed-
ings are in the name of the State, the costs are paid as in criminal
cases; when in the name of the State on the information of another, if the
accusation is not sustained, judgment is rendered against the inform-
ant and his security for the costs, if the same has been given; but if
the accusation is sustained against the accused, judgment for costs must
be rendered against him.
§432. (467.) (406.) Upon the death of informant. Upon the death of
the informant, if there be but one, the proceedings abate, unless some
other person is substituted in his place, which maybe done on applica-
tion to the Court; if there is more than one informant the proceedings
continue on the information of the survivor.
§433. (468.) (407.) The jury who try the case. It is in the province of
the jury who try such proceedings, if they find in favor of the accused,
also to find they were malicious, if they so believe; and upon such finding,
the rights of the accused against the informant are the same as in cases
of malicious prosecution on the criminal side of the Court.
§434. (469.) Attorney failing to pay tax. And whenever it shall be
made to appear to any Judge of the Superior Courts that any attorney
at law practicing in said Court has failed, or fails, to pay his professional
tax levied according to the laws of this State, and execution has been
issuedfor the same by the tax collector and returned by the proper officer,
no property to be found, it shall be the duty of the Judge presiding in
the Superior Court of the county in which the said attorney resides to
cause the clerk of said Court to issue a rule requiring said attorney to
show cause, by the next term of said Court, why he should not be struck
from the list of attorneys, and his license to practice declared of no
effect, for his failure to pay his said professional tax — which rule shall
be served by the Sheriff upon said attorney twenty days before the next
term of said Court; and if, at said term of said Court, said attorney fails
to show sufficient cause, said Judge shall pass an order striking said
attorney from the list of attorneys, and declare his license to practice
in the Courts of law and equity in this State null and of no effect.
City can tax the business of an attorney: 54 Ga., 645; 53/616. "Professions" in
tax Act includes attorneys, and each member of a firm may be taxed : 59 Ga., 187.
General Note. — Argument, professional propriety as to: 27 Ga., 207. May refer to
and use written one before the jury: 29 Ga., 82. . Counsel for plaintiff should have a
> fair chance to argue the case before the jury ; practice : 25 Ga , 85. Supposed facts, not
proven should not be attempted to be argued before the jury : 10 Ga., 512. Latitude
of speech should be allowed counsel, within certain limits : 18 Ga., 495 ; 49/255 ; 55/467 ;
60/367. Should not indulge in inferences from the evidence, not warranted thereby:
20 Ga., 203. Should not argue facts not in evidence before the jury : 25 Ga., 226. May
argue their view of the law before the jury in criminal cases : 56 Ga., 503. Who
should commence and conclude — In appeals from Ordinary's order setting up a
will, the propounder: 6 Ga., 324. From assessment of damages by appraisers, the
party originally moving in the case below : 9 Ga., 359. Attachments, issue on affida-
vit in, the defendant generally: 28 Ga., 109-10. Administration, the applicant for
letters of, generally: 9 Ga., 199. Burden of proof, the one having such burden: 24
Ga., 211. Claim cases : see Rule 13 of the Superior Court and section 3739 and note
thereto. Criminal cases: see section 4645, and note thereto. Dower, issue on return
of commissioners to lay off, the applicant for: 47 Ga., 612. Demurrer, the movant
in: 39 Ga., 232. Devisavit vel non, the propounder of the will: 35 Ga., 102. Equity
PART L— TITLE V.— CHAPTER VII. ' 107
Article 3.— Attorneys at law.
cases: see section 4207 and note. Injunction, against ejectment, and bill for specific
performance, complainant's counsel: 43 Ga., 301. Fraud, issue by creditors, under
honest debtor's act, creditor's attorney: 25 Ga., 268. Joint defendants, one of whom
introduces evidence, then complainant's solicitor: 37 Ga., 205. Motions, movant gen-
erally : see Rule 45 of the Superior Court and note thereto. Solicitor-General can take
any place in the argument: 15 Ga., 476. Torts, the defendant pleading justification :
section 3051, note ; 56 Ga., 351. Advice of, how far it is a protection to a party in a
claim case: 14 Ga., 27; see section 410. Illegality: 55 Ga., 335. As to it protecting a
Sheriff: 39 Ga., 521; 59/821. Absence, leave of granted to an attorney relieves him
from professsonal duties for that Court : 25 Ga., 158. Application of moneys to fi. fas.
by: 33 Ga., 173. Affidavits of client before his attorney invalid: 37 Ga., 678. Same
as to an affidavit probating a mortgage : 46 Ga., 253. Bill for account, by a client
against his attorney should show Common Law remedy inadequate : 7 Ga., 206.
Bench, when elevated to, clients must then look to their cases .in Court: 23 Ga., 175.
Commissions, not entitled to when on a fund in Court where the client was post-
poned to older liens: 17 Ga., 592. Entitled to reasonable commissions for self and at-
torney by a Court of equity, for a fund brought into Court for the benfit also of the
other parties: 29 Ga., 142. Continuance, by an attorney, where party or privy re-
sides out of the county: 25 Ga., 628. For absence of counsel, showing should state
expects to secure his services by next term: 18Ga.,383. Absence in Supreme Court
of an attorney: 51 Ga., 122. Confederate money, no liability against, for takingsuch
currency: 37 Ga., 205; 45/644. Confidential communications: see note to section
3798. Concluding- counsel should state the grounds he expects to rely on, and his
points of law and authorities, in his opening speech : 22 Ga., 627 ; 5/218 ; 55/504. Care,
must be reasonable, and liable for failure to exercise such: 37 Ga., 195. Discretion of
Court below as to remarks of counsel, being warranted by the evidence: 27 Ga., 649.
Declaration, charging an attorney, on a note, what it must aver: 1 Ga., 275. Duties
of: 48 Ga., 350. Employment requires preparation by the attorney to carry on the
suit: 24 Ga., 474. Mere employment of attorney to defend binds no one to abide by
the judgment: 54 Ga., 599, 600. Executor, cannot recover against an executor for
representing the estate professionally until twelve months after his qualification as
such: 45 Ga., 171. Fi. fas., may be assigned by when: 30 Ga., 433; section 3597.
Fees, not collectable by rule against the client : 34 Ga., 377. Where less given by the
jury than is justified by the evidence, new trial ordered: 34 Ga., 328. Conflicting
evidence as to, the jury are the proper ones to decide as to: 45 Ga., 123; see note to
section 406. Interest, conflicting between client and attorney, when not permitted:
59 Ga., 329; 60/56. Infant, should not appear by attorney, but by guardian ad litem:
13 Ga., 467. Not bound by acts of an attorney where they are tainted with fraud, con-
sent decree : 26 Ga., 537. Judgment had against wrong plaintiff, at attorney's in-
stance: 36 Ga., 556. Letters, from plaintiff's attorney allowing him to permit pay-
ments on a fi. fa., gives no right to enter such credits : 5 Ga., 449. Mere letter stating
attorney's sickness no ground for continuance: 45 Ga., 57. Levy directed by an attor-
ney does not render him liable therefor : 28Ga.,297; but see 12 Ga., 613. Limitations
against an attorney in action for negligence, etc., commences to run from the time it
was committed : 33 Ga., 174. Mistake, of attorney as to the time Supreme Court met,
and loss thereby does not furnish ground for a new trial : 33 Ga., 11 ; (Supl't.) As to
taking a mortgage : 53 Ga., 585. When no relief against, in reference to an affidavit of
illegality: 55 Ga., 338. Marks, marginal by an! attorney, going out with jury does
not have any effect, where immaterial: 45 Ga., 585. Misrepresentation of evidence,
by an attorney may be corrected by counsel on the other side : 12 Ga., 295. Court
should correct such misstatements of evidence by the counsel : see 43 Ga., 368 ; 11/253,
616; 25/24; 15/396. Commenting on the attorney's own witnesses' version of the case,
is^not misstating the evidence : 18 Ga., 460. Notes on third persons should not be re-
ceived by, in payment of client's debts, generally: 24 Ga., 252. Neglect, liable for
ordinary neglect: 7 Ga., 144. Where injunction refused as against attorney's alleged
neglect, and liability incurred from it : 59Ga.,641 ; see note to #408. Order,of evidence as
introduced by counsel may be directed by the Court : 18 Ga., 460. Parti efe where no fraud
charged, they should not be made parties to a bill for injunction and relief against the
plaintiff in execution : 2 Ga.,325. Not a party to a judgment, because he was to receive a
percentage for collection : 29 Ga., 256. Partners, as to one of a firm getting commissions
as against the other wdiere he collects fpr, after dissolution : 37 Ga., 299-300. Surviving
partner collecting, does sounder the contract with his firm: 55 Ga,, 283. Pardon,
note to for professional services in procuring, is a good note: 22 Ga., 246. Attorneys
are not the only parties that can procure such: 24 Ga., 623. Relation, of attorney
and client is a confidential one, and is closely scrutinized : 6 Ga., 524-5. Taking advan-
tage of client in a purchase: 47 Ga., 67. Receipt of an attorney describing a note,
but omitting the indorsement : 7 Ga., 144. Rules of Court, applicable to attorneys : see
numbers 2, 11, 15, 20, 21, 45. Services, cannot recover for against the State where he
represents a prisoner, by the Court's appointment : 48 Ga., 348. Must prove value of,
to be able to recover, for: 45 Ga., 171. Statements of counsel not warranted by the
evidence, ground for new trial: 61 Ga., 278. During the argument not evidence : 52
Ga., 290; 57/285. Sheriff, must be made to turn over money to client, else attorney
liable for it, and can proceed against Sheriff then : 34 Ga., 173. Sayings of as agent
only received against the principal, while performing duties as such: 24 Ga., 211, 216.
Unconstitutional oath as to passed on by the Court: 35 Ga., 285.
108
PART L— TITLE V.— CHAPTER VIII.
Article 1. — Justices of the Peace, Notaries Public and their Courts.
General Note on Attorney and Client. — Admissions of: Weeks, §§388, 393-4,
304; 2Wh..Ev., |1184. Agreement not to practice in a particular place, not illegal
because in restraint of trade : 35 Am. R., 267. Agreement to turn over notes held for
collection to another attorney, invalid: 35 Am. R., 267. Argument: Weeks, §110,
et seq. Employment by administrator : see note to §2543. Confidential relation;
dealings between attorney and client: Weeks, §§268, 282: 6 Am. D., 275; 16/623; 31
Am. R., 23; Evvell Evans' A., 287. Attorney cannot delegate authority — payments
to agents of attorney : 24 Am. R., 677 ; E we'll Evans' A., 40. Liable for embezzlement
of another attorney to whom he entrusts note for collection: 36 Am. R., 264, 266, n.
Attorneys of collecting agencies: 1 C. L. J., 433. Evidence as experts : Weeks, §126.
Disobeying instructions : 5 Am. D., 77. Attorneys at law in the exercise of their
proper functions as such are not liable for their acts when performed in good faith and
for the honest purpose of protecting the interests of their clients : 2 Woods, 349.
Liability of client for wrongful acts of attorney: 15 Am. R., 185. Lien of: see note
to §1989. Lobby services, fees for, illegal : see §2750, note. Malicious prosecu-
tion, liability for: Weeks, §133; 19 Am. D., 493, n : 2 Add. Tort, §831. Negligence
of attorneys; liability to client ; what diligence required : Weeks, §283-320 ; 3 Cooley's
Bl., 164, n, 16; Pulling on Attorneys, 148; 2 Add. Contr., §876-7; 1 Add. Torts, §570,
589; 2/1361; Woods' Master & S., 342-355; 4 C. L. J., 69; 16 Am. D., 582; Whart.
Neg., e §744; 2 Gr. Ev., §137; Shear. & R. Neg., 251; Mayne Dam., §648. Accepting
decision of Supreme Court of his State not negligence, though decision erroneous : 21
Wall.. 178. Buying in client's property at sale : 21 Wall., 178. Notice to, presumptive
notice to client: 23 Am. D., 62; Ewel'l Evans' A., 160, 163; 11 Wall., 217, 120, 263. Is
an officer of the Court: 16 Am. D., 98, n; 4 Wall, 333. Partnership, of attorneys:
Weeks, §§314, 335, 415, 523, 630; 19 Am. R., 757. Dissolution: 9 0., 355. "Profes-
sional services" defined: 21 Wall., 441. Revocation of relation: Weeks, §249.
Slander of attornevs : Weeks, §136. By attornevs: Weeks, §116, and note to §2980.
Taxation of: Weeks, §41. Title, investigation "of: Weeks, §§267, 311; 3 C. L. J., 559,
605. Attorney employed by both parties to examine title — fraud on one : 10 0., 494.
Trustees of public trust, authority of attorney for: 2 Woods, 647. English cases cited
in 1 Jacob's Fisher's Digest, 594- 786; American cases, in Weeks on Attorneys.
CHAPTER VIII.
JUSTICES OF THE PEACE, JUSTICES' COURTS, AND CONSTABLES.
Article 1. — Justices of the Peace, Notaries Public and their Courts.
Article 2. — Constables.
ARTICLE I.
JUSTICES OF THE PEACE, NOTARIES PUBLIC AND THEIR COURTS.
SECTION.
435. One Justice in each, district.
436. Notaries Public.
437. How removed from office.
438. Vacancies, how filled.
439. Elections, how and by whom held.
440. Ordinary may order an election.
441. Qualifications of a Justice.
442. Ordinary may appoint, when.
443. The oath of a Justice.
444. Oath, before whom to be taken.
445. Criminal jurisdiction of the Justice.
446. Civil jurisdiction of the Justice.
447. Debts may be divided.
448. Territorial and criminal jurisdiction.
Section.
449. Justice may be sued in his own district.
450. If the Justice be disqualified.
451. When there is no Justice.
452. Suits may be transferred.
453. When transferred.
454. Transferred suits.
455. Co-obligors, joint contractors, etc.
456. Residents in districts not organized.
457. Special powers and duties of Justices.
458. Justices' Courts.
459. Changed once in four years.
460. Justices newly elected.
461. Times and places now established.
462. Judgments rendered.
c^p ^ 819 ' §435. (470. ) (408.) One Justice of the Pea,ce in each district. There shall
be [one] (a.) Justice of the Peace in each militia district of the several
of i86^Ak counties of this State, elected by the people of each district, in the
5, sec. 6 manner hereinafter prescribed, who hold their offices for four years,
1877, Art. 6, unless sooner removed.
Sec. 7, par.
1. "When Justice of the Peace moves from the district in which he has been commis-
sioned and selected, he vacates his office : 20 Ga., 746.
PART I.— TITLE V.— CHAPTER VIII. ■ 109
Article i.— Justices of the Peace, Notaries Public and their Courts.
§436. Notaries Public, their appointment and term. Commissioned No- (a) Const.
taries Public, not to exceed one for each militia district, may be ap- 5 g|^' 6 Art '
pointed by the Judges of the Superior Courts in their respective Cir- clause 4'.
cuits, upon recommendation of the grand juries of the several counties, const, of
They shall be commissioned by the Governor for the term of four years, g 877, 8 Art 6 »
and shall be ex officio Justices of the Peace, and shall be removable
on conviction for malpractice in office. /f&—/7 <?S*7
Conviction of a Notary Public of malpractice in office : 46 Ga., 209.
§437. (471.) (409.) How removed. They are removed from office in Act of 1819,
the manner prescribed by the Constitution, and also on conviction for c - ?• 207 ;
malpractice in office, or for any felonious or infamous crime. §§4304,4504.
§438. (472.) (410.) Vacancies, how filled. Vacancies are filled in the Act of 1819,
following manner : If there is a Justice of the Peace in the district c - p - 207,
where the vacancy occurs, he shall appoint some Saturday in a month,
and advertise the same at three of the most public places therein at
least fifteen days before the day appointed.
§439. (473.) (411.) Election, how held. On said day said Justice, with
two freeholders, must hold said election in the same manner that a reg-
ular election for Justice of the Peace is held, and duly certify the same
to the Governor, who must commission the person elected for the unex-
pired term.
§440. (474.) (412.) If no Justice. If there is no Justice of the Peace (a) Acts of
in the district where the vacancy occurs, the Ordinary of the county ^f 2-3 ' p *
must order an election in the same manner, which may be held by three
freeholders of the district, who must hold and certify said election in
the same manner.
§441. (475.) (413.) Qualifications, etc. All persons are eligible to the
office of Justice of the Peace who are entitled, in the county in which
the district is situated, to vote for the members- of the General Assem-
bly, who have been three months in the district next preceding the elec-
tion, and who do not labor under any disqualification.*
§442. (476.) (414.) Failure to elect. When any district is without a (a) const.
Justice of the Peace, and an election has been legally ordered to supply 5 f sec 8 '6 Art
the vacancy, and none is bona fide held at the time and place appointed, clause 4'.
it is the duty of the Ordinary to appoint one person, resident in the
district, such Justice to have it certified to the Governor, who must
commission the appointee for the required term.
§443. (477.) (415.) Oath. Justices of the Peace, [including commis-
sioned Notaries Public, who are ex officio Justices of the Peace,] (a) before
entering on the duties of their office, besides the oath required for all *
civil officers, must take the following oath :
" I do swear that I will administer justice without respect to persons,
and do equal rights to the poor and to the rich, and that I will faith-
fully discharge all the duties incumbent on me as a Justice of the Peace
for the county of , agreeably to the Constitution and laws of this
State, and according to the best of my ability and understanding. So
help me God."
§444. (478.) (416.) Oaths, before whom taken. Such oaths shall be taken
and subscribed before the Ordinary of the county.
§445. (479.) (417.) Criminal jurisdiction. They have criminal juris-
diction in the following instances :
1. In acting as conservators of and preserving the public peace in
their respective districts and counties. •
*The words : " Being a clerk shall be no disqualification" stricken from this section by Act of
27th September, 1881
110 PART L— TITLE V.— CHAPTER VIII.
Article 1.— Justices of the Peace, Notaries Public and thei* Courts.
If
2. In issuing warrants for the apprehension of any person charged on
oath with a violation of any portion of the Penal Code, or who are so
known to them officially.
3. In examining such persons, when brought before them and to com-
mit, bind over, and discharge, according to the directions of this Code.
4. In such other cases as jurisdiction may be constitutionally given.
Wells' Jur., $393.
Const, of §446. (480. ) (418.) Civil jurisdiction. They have a general and origi-
Sl 7 '7 A ^r 6 ' na l jurisdiction :
2. 1. [In all civil cases arising ex contractu and in cases of mjumes or dam-
c. c p. 68& U ' a g es to personal property, where the principal sum claimed does not
c ct °649 819, excee d one hundred dollars,] (a) and in cases where the debt has been
Act of 1835, larger, and the balance due is not more than said amount.
Ao?of 1855- Section cited : Dozier vs. Allen (Pamp., Feb., 1880, p. 21).
6, p. 254. Wells' Jur., $402 ; 9 C. L. J., 399.
(a) const. 2. Of contests for the mere possession of personal property.
5, f sec 8 6f rt ' 3. Of forcible entries and detainers, or either, with the aid of a jury
clause 2. of twelve men, as prescribed by this Code.
§§4132-4. 4. Of all other causes when jurisdiction is constitutionally given
24032 them, in their capacity as Courts of justice.
Jurisdiction of, against a bank refusing to pay in specie, under Act of 1842 (C, p.
g4085. 100): 12 Ga., 531. Justices of Peace jurisdiction enlarged in Macon under Act of 1852:
17 Ga., 348. Act of 1855-6, extending jurisdiction to attachments: 25 Gra., 151. A
claim may be brought within the jurisdiction of, by payments: 30 Ga., 8. Action
against an inn-keeper to recover value of a lost overcoat : 39 Ga., 105. When have no
jurisdiction over nuisances in a town or city: 40 Ga., 87. Distress warrants may be
obtained before for an amount larger than could sue for : 44 Ga., 243. Concurrent with
the Superior Court of debts less than $100 : 43 Ga., 360. Creditor cannot write off from
the amount so as to bring it within jurisdiction of Justice of Peace without consent of
debtor : 58 Ga., 406-77. Cannot set aside a j udgment or grant a new trial : 54 Ga., 584-
585. Cannot open a case again, after judgment, and render second judgment: 64 Ga.,
565. Where claim is for fifty dollars, may certiorari a case arising from the suit : 51
Ga., 194. Case for damages against a railroad caused by injury from barbed wire
fence : 62 Ga., 679-680. Trover can be brought before for one hundred ($100) dollars
under the Constitution of 1877: 62 Ga., 346; 57/218; 61/230. Have jurisdiction of
torts' as well as contracts in this case against a railroad for killing stock to the amount
of $100: 58 Ga., 534.
§447. (481) (419.) Debts may be divided. Debts, which in the aggre-
gate, amount to more than Justice's Court jurisdiction, may be di-
vided into liquidated demands, so as to bring them each within such
jurisdiction.
Bill holder may divide bills held against a bank so as to bring his demand within •
the jurisdiction: 12 Ga., 531. Section cited and discussed: 60 Ga., 672-669. Right to
consolidate suits in, if the Court not thereby ousted of jurisdiction : 45 Ga., 96; 35/82.
• Creditor cannot place a claim within jurisdiction, by a credit, without the debtor's
consent: 58 Ga., 406.
r*>**~ §448. (482.) (420.) Limits of criminal jurisdiction. Their criminal juris-
diction extends over persons of, or crimes committed in, their respect-
ive counties, and their civil jurisdiction over persons resident of their
respective districts, and itinerant persons, and to persons of other dis-
tricts in certain particular cases provided for in this Code.
Wells' Jur., $394.
§449. (483.) (421.) Justice, when sued. One Justice of the Peace may
sue or be sued before the other in his own district.
§450. (484.) (422.) Where Justice is disqualified. When a Justice of
Act of i8ii. the Peace is disqualified from presiding, and there is no other Justice
app. 644, f ^ e Peace in his district who is qualified, any Justice of the Peace of
the county is qualified to issue all process and to preside in his district;
* ' ' and if a Justice of the Peace is sued under such circumstances, the suit
/T" h~i* may be located in any adjoining district.
Section cited and discussed: Dozier vs. Allen (Pamph., Feb., 1880, p. 21).
Wells' Jur., £396.
L
PART L— TITLE V.— CHAPTER VIII. Ill
Article 1.— Justices of the Peace, Notaries Public and their Courts.
i
§451. (485.) (423.) Where there is no Justice. Where there is no Justice
of the Peace in any district where a defendant resides, or there is one
and he refuses to serve generally or in any particular case, the suit may
be located in any adjoining district.
§452. (486.) (424.) Suits may be transferred. If suits are already com- ^^^^j^^
meneed and are suspended for the want of a Justice of the Peace to// •*• *~
preside, such suits shall be removed to the adjoining districts, unless the
evil is removed within sixty days.
§453. (487.) (425.) Suits may be transferred to county site. If, from any
cause, all such suits cannot be located or prosecuted in some adjoining
district, they may be commenced or removed to the Justice's district
which embraces the county site.
§454. (488.) (426.) Power of Justices, etc. The Justices of the Peace and
constables of any district where a suit is thus begun or removed, have
the same power as those officers have in the proper districts.
'§455. (489.) (427.) Makers, indorsers. etc., how sued. Suits against makers Act of lsn,
and indorsers, and against co-obligors, or joint-makers, may be located Act of iko,
in the district where the principal debtor or one of the co-obligors or c - p - 65L
joint-makers can be sued, and the other parties, who may reside in a '^4135, 413&,
different district from such in the same county, may be joined in the 4142 '
suit on the same terms such persons residing in different counties may
be sued in the Superior Courts, but by the process used in Justice's
Courts; and in such cases the constable of the district where the suit
is located may serve such process in any part of the county.
§456. (490.) (428.) Residents where sued. Persons resident in any por-
tion of a county whose residence, from any cause, is not embraced in
any organized Justice's district, are subjected to suit in the district
whose Court-ground is nearest their residence where there is an acting
Justice of the Peace.
§457. (491.) (429.) Duties, etc., of Justices. Justices of the Peace have Act °f™ 9 '
authority, and it is their duty — Act'of mi,
1. To select some central and convenient place in their respective C -J^ 9 - , a
districts at which to hold their Courts, of which they shall give ample */^ i^a^^,
public notice, and also to keep their offices within said districts; but in /r£^^ L
towns or cities which embrace more than one district, they may hold
their Courts and keep their offices at some c.mtral and convenient place ^y
within the limits of said towns or cities.
2. To fine not more than five dollars, nor imprison more than five
hours, any person guilty of a contempt of Court, and to pay the fine to
the County Treasurer for county purposes.
3. To issue attachments returnable to their own, and, in certain cases,
to the Superior Courts of the county.
4. To issue all process necessary to maintain their jurisdictions and
enforce their authority under the sanction of law.
5. To administer oaths and take affidavits, except the power is ex-
pressly restricted to some other officer, and to take the acknowledgment
or probate of any conveyances required to be recorded.
6. To keep a docket of all causes brought before them, in which must
be entered the names of the parties, the returns of the officer, and the
entry of the judgment, specifying its amount and the day of its ren-
dition.
Docket ought to furnish evidence of service of a summons: 12 Ga. y 425, Section
cited discussed: 64 Ga., 566-7.
7. To carefully file away and label all papers appertaining to any
cause, and all ft. fas. and other process returned, after being satisfied,
entered " nulla bona," or have otherwise discharged their functions.
8. To attend the Superior Courts and Courts of Ordinary of their
counties, whenever required, with such docket or papers of file.
.
112 PART I— TITLE V.— CHAPTER VIII.
Article 1.— Justices of the Peace, Notaries Public and their Courts.
•
9. To establish, when lost, in the manner prescribed by law, any pa-
per appertaining to an}^ suit or other proceeding in their respective
Courts.
10. To answer interrogatories from Courts of other counties, as to
the contents or condition of any of the dockets, files or papers of their
office, and to attach thereto copies of such, when such interrogatories
are propounded and such copies required.
11. [To make a list of names of all persons liable to tax on property
(a) Act of or poll 'in their respective districts, and return the same to the receiver
Feb., 18/3. Q £ £ ax re £ um g 5 a £ fag second round to receive tax returns in their re-
spective districts in each year.] (a.)
12. To perform such other duties as are or may be required by law,
or which necessarily appertain to their office.
§458. (492.) (430.) Places of holding Justice's Courts, how changed. If any
I§4i30-i. Justice's Court is held at an inaccessible or inconvenient portion of any
district, or such a place is hereafter selected, the qualified voters of
such district may petition such Justice to change the place to some
other place, naming it, and if he refuses to change, they may apply to
the Ordinary : and if said Ordinary is satisfied that the place where
such Court is held works an inconvenience to a majority of the citizens
of such district, he shall, change the place, to' take effect after the ex-
piration of thirty days, have it entered on his minutes, and published
in the district.
§459. (493.) (431.) How often changed. When a place for holding such
Acts of 1877, Court is once fixed it cannot be changed except in the manner stated,
pI 88- and then but once during the four years' official term : Provided, that
the place for holding such Courts in the town and city districts in this
State may be changed as often as may be necessary, under such terms
and conditions as the Ordinary of the county may direct.
§460. (494.) (432.) Time and place may be changed. When a new Jus-
tice of the Peace is qualified, and he desires to change the place of hold-
ing such Courts, he may do so by giving public notice of the fact, stat-
ing the place to which changed, and the first, Court to be thus held,
which change shall not go into effect short of sixty days from the time
of advertising.
§461. (495.) (433.) Time and place not disturbed by adoption of this Code.
The places now established for holding Justices' Courts are not disturbed
by the enactment of this Code, and the militia districts now established
by law remain the same, but they may be altered and new districts
formed by the Ordinary of each county as hereinafter prescribed.
§462. (496.) (434.) Judgments, when void. All judgments of such Jus-
tices rendered in any civil cause, anywhere else than at the place for
holding their Courts lawfully appointed, are void.
General Note on Article I. — Judgments, what entries sufficient: Freeman
Judg., $53, and n, §55 ; 1 C. L. J., 543. Not attacked collaterally: 36 Am. R., 730.
Juries in: Wells' Jur., §403. Jurisdiction: Wells' Jur., §§388, 406. Waiver of, ob-
jection to : 5 C. L. J., 428, 454-5. Liable for acts without or in excess or jurisdiction,
> or when acting corruptly: 1 Sm. L. C, 805, 817; 19 Am. D., 490, n; 21/217; 22/546;
23/380. Not liable for error in judgment: Wells' Jur., §392. Acts ministerially,
When: 22 Am. D., 546 ; see also 7 C. L. J., 336; 8/328, 388, 447, 465; 9/124, and note on
Judicial Liability, on page 53 of Code. Practice, right to try case after time set :
Wells' Jur., §404; 25 Am. D., 545. Resignation, pending action: 5 C. L. J., 428.
Warrant of commitment, what sufficient : 3 Ci\, 448. Trespasses, injuries committed
in the execution of warrants of Justices of the Peace: 2 Add. Torts, §§960-1014, 1018-
1039.
PART L— TITLE V.— CHAPTER VIII.
113
Article 2.— Constables.
ARTICLE II.
CONSTABLES.
Section.
472. In cases of emergency.
473. Must give bond and surety.
474. Ordinary must certify.
475. Additional surety, when.
476 May be ruled and attached.
477. May be ruled in Superior Court.
478. His special duties enumerated.
479. Penalty for acting after retiring.
Section.
463. Two constables in each district.
464. How removed from office.
465. Vacancy, how filled.
466. Justices failing to agree.
467. If there is but one Justice.
468 Justice failing or refusing to appoint.
469. Qualifications of constables.
470. Disqualifications.
471. His oath of office.
§463. (4970 (435.) Constables, number, election, etc. There shall be two Act of i£29,
constables in each militia district of the several counties of this State, Cl p aa
elected by the people of each district as hereinafter prescribed, who
hold their offices for two years unless sooner removed.
§464. (498.) (436.) How removed. They are subject to be removed
from office on the same grounds and on the same proceedings as Clerks
of the Superior Court are, and on conviction for malpractice in office
as Justices of the Peace are.
§465. (499.) (437.) Vacancies. Vacancies are filled by appointment Act oj isii,
of the Justices of the Peace of the district in the following contingen- c - p 201 -
cies:
1. When, from any cause, there is a failure to elect, qualify, and give
bond at the regular time.
2. When there is a death, resignation, or removal of constable.
3. When from sickness, or other providential cause, the district is
without a constable, there may be an appointment, if an emergency
arises, to continue until the regular constable enters on the discharge of
his duties.
4. When the constables of the district are absent temporarily from ^
the district the like power may be exercised. j/f*ft ^^
"When the Judge of the County Court appointed the agent of the plaintiff to exe-
cute process, the appointment and his acts afterwards illegal : 52 Ga., 341-3.
§466. (500.) (438.) Appointment of constables. If there are two Justices
of the Peace, and they cannot agree upon an appointment, the one who
has served longer as such continuously and immediately preceding,
shall appoint; if there are two constables to appoint, each Justice shall
appoint one.
§467. (501.) (439.) When but one Justice, who may appoint. If there is
only one Justice of the Peace, he may make the appointment, but it
shall be in the discretion of the Justices, whether one or two, to ap-
point the second constable or not, if there is one in office, or one or two
if there is none in office.
§468. (502.) (440.) When Justice fails to appoint If the Justices of the
Peace of any district fail or refuse to have as much as one constable in
their district, for as long as thirty days from the time such a vacancy
occurs, the ^Ordinary of- the county shall fill the appointment.
§469. (503.) (441.) Qualifications of constable. The eligibility for
constables is the same as that for Justices of the Peace, but any per-
sons may be appointed constables to fill vacancies or to answer some
emergency, who are at the time residents of the district.
Constable made de facto deputy sheriff by the Sheriff's appointment: 61 Ga., 272.
§470. (504.) (442.) Disqualifications. Constables cannot be Sheriffs or
Sheriff's deputies, nor can they be Clerks of the Superior Courts, nor
can such officers be constables.
§471. (505.) (443.) Oath. Each constable, before entering on the du-
ties of his office, must take and subscribe, beside the oath for all civil
officers, before the Ordinary of his county, the following oath :
8
114 PART L— TITLE V.— CHAPTER VIII.
Article 2. — Constables.
" I swear that I will duly and faithfully perform all the duties re-
quired of me as constable of the county of , according to the best
of my ability and understanding. So help me God."
§472. (506.) (444.) Constables appointed on emergency. Constables ap-
Act of 1830, pointed to answer some sudden emergency, as in section 465, may take
c. p. 2i4. an( j subscribe said oath before the Justices of the Peace appointing
them, who shall file the same in the office of the Ordinary.
De facto deputy sheriff by Sheriff's appointment is valid: 61 Ga., 272. But the
Judge of the County Court should not appoint the agent of the party interested : 52
Ga , 343.
§473. (507.) (445.) Constable's bond, etc. All constables, except those
Act of 1816, thus appointed, must, before entering on the discharge of their duties,
Ac?'of°i8i8 gi ye a bond payable to the Ordinary of the county and their successors,
o. p. 206. ' with two good sureties resident in the county, in the sum of five hun-
/ur ^^/^/r dred dollars, to be approved by such Ordinary, which shall be by him
&zn~*£'/2~0-e>. cl**~- -filed in his office and recorded in a book kept for that purpose.
/r^"'-' One instead of two sureties' signature to constable's bond makes a good voluntary
bond: 5 Ga., 569. On the Act of 1818 : 17 Ga., 625.
-. •.;,.-, §474. (508.) (446.) Ordinary must certify to filing, etc. When such oath
is taken and filed and such bond given, such Ordinary shall issue to
such constable a certificate of such facts and make an entry thereof on
his minutes, which certificate shall answer as his commission.
§475. (509.) (447. Additional surety. Constables may be compelled to
give additional bonds upon complaint made on oath before the Ordi-
nary, if after the hearing such Ordinal y so orders it done, and upon
failure to do so shall be removed by such Ordinary.
§476. (510.) (448.) May be ruled in Justice's Court. They are liable to
Act of 1820 rule, attachm nt, and penalties in their respective districts, but in
24170 ° 49 ' default of any Justice of the Peace in such district, or if there are such
who refuse to serve, they may be ruled before any Justice's Court of
an adjoining district or the Superior Court.
Where an answer of a constable to a rule held insufficient : 62 Ga., 174.
§477. (511.) (449.) May be ruled in Superior Court. It is optional with
parties to rule constables before the Superior Court of their respective
counties, in term time, on the same terms that Justices of the Peace
are ruled.
Act of i8ii, §478. (512.) (450.) Special duties. It is their duty—
?472o. 6i °' 1. To attend regularly all terms of the Justice's Court in their respec-
tive districts.
2. To attend all terms of the Superior Courts of their respective
counties, when summoned by the Sheriff for that purpose.
3. To give receipts for notes or other liquidated demands placed in
their hands for collection.
4. To pay over money promptly as collected to the party entitled
thereto, and in cases of conflicting claims to any money, to report the
same to the next Justice's Court of the district where they are amen-
able, for its order in the premises.
5. To execute and return all warrants, summons, executions, and other
process to them directed by lawful authority.
Constable's entries, if necessary, may be made nunc pro tunc : 3 Ga., 222. "When
presumed that constable made the proper entry : 6 Ga., 188. His return made in his
presence by a magistrate at his request is valid : 9 Ga., 325. It is his duty to make
entries of service and sign them: 9 Ga., 471. Cannot amend or alter levy after he is
out of office: 12 Ga., 261. Constable's return on a Justice's Court warrant may be
amended after judgment: 17 Ga., 349; 27/299. One entry of no personal property
justifies a constable in levying on land : 27 Ga., 341.
6. To perform such other duties as are or may be required of them
by law, or which necessarily appertain to their offices.
PART I.— TITLE VI.— CHAPTER I.
115
Militia Districts.
§479. (513.) (451.) Persons acting as constable after term of office expires. If
any constable exercises the duties of his office after removal from the
district where he was elected or appointed, he is subject to a fine of fifty
dollars for every such act, to be recovered before any Justice of the
county in which he resides by any one suing for the same — one-half to
the use of such person, the other half to the use of the county.
General Note on Article I. — Actions against: Abbott's Tr. Ev., 607-612. Rigbt
to receive reward offered for arrest: 26 Am. R., 1, note 5-10. Trespass by: 2 Add.
Torts, §§1015-7, 1032, 1039, and note following §366 of this Code.
CHAPTER IX.
, CORPORATE COURTS.
Section 480. Corporate and Police Courts— how affected by the Code.
§480. (514.) (452.) Corporate and Police Courts. The organization of
the various Corporate and Police Courts of this State, and the laws rel-
ative thereto, are undisturbed by the adoption of this Code, unless addi-
tional, concurrent or exclusive jurisdiction, or cumulative remedies,
are conferred by it upon them, or other Courts, or other magistracy, and
then they are altered only to that extent.
As to City Court of Savannah, see Appendix : 22 Ga., 466. City Court of Augusta,
affidavit for bail process, certiorari from Richmond county Superior Court : 13 Ga., 357.
City Court of Augusta had no jurisdiction of less than $100 : 46 Ga., 486. City Court of
Atlanta, habeas corpus case, no supersedeas, before bill of exceptions tendered: 47 Ga.,
390. City Court of Atlanta cannot grant new trials : 48 Ga., 37.
TITLE VI.
COUNTY ORGANIZATION.
Chapter 1. — Militia Districts.
Chapter 2. — Incorporation of Counties, County Contracts, etc.
Chapter 3. — County Revenue.
Chapter 4. — County Officers not before specified. *
Chapter 5.— Roads, Bridges, Ferries, Turnpikes, etc. Coz^rr~ £o&-^+* <
Chapter 6. — The County Poor. a&/? yy/ /<?&,
tu2£,
CHAPTER I.
militia districts.
Section.
481. Counties divided into militia districts.
482. Districts to remain the same.
483. Must contain a captain's company.
484. How laid out or changed.
485. Survey and compensation therefor.
Section.
486. Proceedings to be recorded.
487. To be transmitted to the Governor.
488. Elections to be ordered by Ordinary.
489. Officers not removed by making,
490. Not to affect pending suits.
§481. (515.) (453.) Militia districts, how divided. Each county of this
State is divided into militia districts according to their respective ter-
ritory and population liable to bear arms.
§482. (516.) (454.) Districts to remain. Such districts as at present
organized are to remain the same until changed in the manner here-
inafter prescribed.
116 PART I.— TITLE VI.— CHAPTER I.
Militia Districts.
§483. (517.) (455.) Must contain captain's company. Each district here-
after organized or changed must contain within its limits at least as
many persons, resident at the time of the organization, liable to militia
duty as are necessary to form a captain's company according to the
militia laws, and in its formation must not leave any older district
with a less number.
§484. (518.) (456.) How. laid out or changed.. Whenever it maybe
. Act of 1839, necessary and expedient to lay out a new militia district, or to change
Act of 8 i840 ^he l ines of old ones, the Ordinary may, at any time, appoint three
- c. p. 187. ' commissioners, citizens of the district or districts from which it is pro-
posed to make the new district, or change the lines thereof, whose duty
it shall be to lay out and define such lines, and report the same to the
said Ordinary.
§485. (519.) (457.) Survey, etc. Such commissioners have authority
.Act of 1839, to engage the services of a competent surveyor to assist them in their
<c. p. 187. d u ties, who shall be paid for his services out of the county treasury,
the same compensation county surveyors have for similar services ren-
dered a citizen.
§486. (520.) (458.) Proceedings recorded. If the Ordinary approves
. Act of 1839, their report, he shall have all proceedings in the matter entered on his
c. p. 187. m i n utes, after which the district laid out, or line changed or defined,
shall be known and regarded accordingly.
§487. (521.) (459.) Proceedings transmitted to Governor. It is the duty
Act of 1840, of such Ordinary, if a new district is laid out, to transmit instanter to
<e. p. 187. .^ e Q ovemor such proceedings, from his minutes, duly certified, and to
publish them for thirty days at the door of the Court House and in the
public gazette where he does his official advertising.
§488. (522.) (460.) Ordinary must order an election, when. As soon as
such is done, such Ordinary must immediately order an election for a
Justice of the Peace and two constables (for such district), after adver-
tising the same for thirty days in three of the most public places of
the new district.
§489. (523.) (461.) Making or changing districts, consequences. If, in
laying out a new district, or in changing the lines of old districts, the
residences of Justices of the Peace or constables elected or appointed
are included in the new district, or cut off from the district for which
they were elected or appointed, they have authority to discharge their
duties for the district for which they were elected or appointed, until
their terms of office expire and their successors in such district are
qualiiied, unless elected or appointed to the same office in the new dis-
trict to which they are eligible.
§490. (524.) (462.) Suits pending. Suits pending in any Justice's
Court must not be changed because the residence of a defendant is in-
cluded in the new district or cut off into another district, but they
must proceed as though no such change had been made.
PART L— TITLE VI.— CHAPTER II. 117
Incorporation of counties, etc.
CHAPTER II.
INCORPORATION 0£ COUNTIES, COUNTY CONTRACTS, PROPERTY AND. CLAIMS. /
/ Section. // / /
503. On failure toftevy such tax. /
504. Public buildings, etc., to be inspected.
505. Duty of the Judge.
506. Claims against the county.
507. Must be presented in twelve months.
508. Judgments against the county.
508. (a.) County officers to make annual re-
turns.
Section.
491. Each county is a body corporate.
491. (a.) System of drainage may be estab
lished.
492. Suits against a county.
493. Contracts with the Ordinary.
493. (a.) Mode of contracting.
493. (b.) Notice— what.
493. (c.) Bond of contractors.
493. (d.) Penalty for illegal contracts.
494. Grants, deeds, etc.
495. Property of the eounty.
496. County buildings — by whom erected.
497. Preservation of buildings, etc.
498. Occupancy of rooms in Court House.
499. Court-houses, jails, etc.
500. Injuries to public buildings, etc.
501. Dimensions and construction of jails.
502. Tax — by whom levied.
508. (b.) Duty of grand juries.
508. (c.) Officer failing to make return, how
dealt with.
508. (d.) Bridges between counties, how
built.
508. (e.) Notice required.
508. (f.) Bond of contractors.
508. (g.) Repairs under five hundred dollars.
508. (h.) Payment bond made.
§491. (525.) (463.) Each county a body corporate. Every county which (jLAj* 80 *
has been or may be established in this State, is a body corporate, with 72, 73.' PP '
power to sue or be sued in any Court. [And all inhabitants of counties
in this State, who are competent jurors in other cases, are declared and
shall be holden to be competent jurors in any case, in any Court, where
such counties are parties to the suit or interested therein in their ca-
pacity as corporations or quasi corporations.] (a.)
Citizens of the county competent jurors to try issues on executions against tax col-
lector and sureties : 11 Ga., 207. Interest of citizens of a county in the result of the
suit equally balanced, are competent jurors: 15 Ga., 39-73. Competent jurors to try
defendant charged with burning the county jail : 29 Ga., 105. Section cited, may be
tried in the United States Courts : 49 Ga., 467. Suits for a county may be brought by
the Ordinary or the commissioners: 54 Ga., 163-5. Section cited and construed: 45
Ga., 326.
Differ from municipal corporations, how: Dillon M. C, §785; 1 Thomp. Neg., 616.
§491. (a.) System of drainage may be established. Each and every Acts of 187?
county is hereby authorized and empowered, whenever the constituted -9 ' p * 17L
authorities thereof shall judge the same to be proper, to establish and
maintain a system of drainage of the whole or any part of the low
land thereof, and for that purpose to acquire the right of way and other
easements necessary for the construction of the canals, ditches, dams,
drains, trunks, and other appurtenances incident to such a system.
The right of way may be acquired from the land-owners with their
consent for the consideration of the benefits conferred on them by the
drainage established. Whenever a county has already established a
system of drainage, and for that purpose acquired easements and made
constructions of the character herein specified, the action of such
county, and grants of easements made to it, are valid.
§492. (526.) (464.) Suits against counties, how brought and served. [Suits (&\ Acts of
against a county must be against the Ordinary, and in all cases iioav 1872, p- w
pending or may hereafter be commenced in the Courts of this State, in
which a county may be a party defendant, service perfected upon the
the Ordinary and Clerk of the Court of Ordinary, if there be a clerk,
and if no clerk,then upon the Ordinary alone, shall be deemed sufficient,
except that in those counties where the fiscal affairs of the county are
or shall be by law committed to a board of commissioners, then service
perfected upon a majority of said commissioners shall be sufficient to
all intents and purposes.] (a.)
Section cited and construed: 54 Ga., 27, 165.
Suits against: 7 O., 374 ; 5 C. L. J., 233. In U. S. Court: 7 Wall., 118.
118 PART I.— TITLE VI.— CHAPTER II.
Incorporation of counties, etc.
§493. (527.) (465.) Contracts with Ordinary. All contracts entered into
by the Ordinary with other persons in behalf of the county must be in
writing and entered on their minutes.
Parol contract for building a bridge : 20 Ga., 328. Section cited and construed, and
in suits against the county pleadings must show that the contract sued on was entered
on the minutes of the Inferior Court: 46 Ga., 462-3-4. Must be entered in writing on
the minutes : 54 Ga., 69.
§493. (a.) Mode of contracting in certain cases. Whenever it becomes
Acts of 1878 necessary to build or repair any Court House, jail, bridge, causeway, or
Acts'df 5 i880 °ther public works in any county in this State, the Ordinary, commis-
-i, p. 183. sioners of roads and revenues, or other officers having charge of the
roads and revenues and public buildings of such county, shall cause
the same to be built or repaired by letting out the contract therefor to
the lowest bidder, at public outcry, before the Court House door (or at
the place where the Sheriff of the county holds his regular sale), after
having advertised the letting out of said contracts as hereinafter pro-
vided : Provided, that such county authorities shall have authority to
reject any and all bids at such public letting, and if in their discretion
the public interest and economy require it, such county authorities may
build or repair any public buildings, bridges, causeways, or other public
property in the county, by contract or sealed proposals, to be invited
under the same provisions as to specifications and like informations as
is provided in the following sections :
§493. (b.) What notice shall be given. Whenever the contract is likely
Acts of 1878 to cost a sum greater than five thousand dollars, the proper officer shall
-9, p. 159. g- ve no ti ce in the public gazette wherein the Sheriff 's sales are adver-
tised, once a week for eight weeks, and by posting a written notice
at the Court House door for a like time, which notice and advertisement
shall embrace such details and specifications as will enable the public
to know the extent and character of the work to be done, and the terms
and time of payment. When the work to be done is likely to amount
to less than five thousand dollars, the notice shall be published as pre-
scribed in this section, once a week for four weeks, and by posting
notice as aforesaid for the same period; and it shall iurther be the duty
of such officer to make out and post conspicuously in his office, complete
and minute specifications of the proposed public work, or works, which
shall be open to the inspection of the public.
£ ^_ ^ /^ ^/ v §493. (c.) Bond of contractors. Contractors who are awarded contracts .
fy******* Actsofi878 shall be required to give bond in double the amount of the bid, with
/?J*j£y< ~ 9 > p- 159 - two good and solvent securities for the faithful performance of the
contract, and to indemnify the county for any damages occasioned
by a failure to perform the same within the prescribed time. And
it shall be unlawful to let out any contract for building or repairing
any public building, bridge, or other public work, unless the provis-
ions of these sections are complied with; and any contractor doing, or
having done, any work of the kind in any other manner shall not be
■ entitled to recover any pay therefor: Provided, that the requirements
of these sections shall not apply to the building or repairing of any
public bridge, building, or. other work, when the same can be done at
a less cost than one hundred dollars, but such officer may have such
work of building or repairing done by hiring hands and furnishing
materials.
§493. (d.) Penalty for illegal contracts. If any Ordinary, commissioner
Acts of 1878 of roads and revenues, or other officer having charge of the roads and
-9, p. 159. revemies an( j buildings of the county, shall let out any contract for
building or repairing any public work, as hereinbefore mentioned,
without complying with this and the three preceding sections; or if
any one of the aforesaid officials shall receive, take 3 or contract to receive
,
PART I.— TITLE VI.— CHAPTER II. 11!)
Incorporation of counties, etc.
or take, either directly or indirectly, any part of the pay or profit
arising out of any such contract, he shall be deemed guilty of malprac-
tice in office, and, upon conviction therefor, shall be punished as is pre-
scribed by the law in other cases of malpractice.
§494. (528.) (466.) Deeds for benefit of county. All deeds, convey-
ances, grants, or other instruments which have been or may be made
to any officer or person for the use and benefit of the county, vests in
such county the title as fully as if made to such county by name.
§495. (529.) (467.) County property, how controlled. The Ordinary has
the control of all property belonging to the county, and may by order
to be entered on their minutes direct the disposal of any real property,
which can lawfully be disposed of, and appoint a commission to make
the titles thereto and the conveyance of such commission in accord-
ance with such order, vests the grantee or vendee with the title of the
county.
Control of county property : 9 Ga., 486. Formerly by Judges of Inferior Court: 13
Ga., 502. Ordinary now : 45 Ga.. 325. Section cited and construed: 64 Ga., 331.
§496. (530.) (468.) County buildings, etc. The county buildings are to
be erected and kept in order and repaired at the expense of the count} 7 ,
under the direction of such Ordinary, who is authorized to make all
necessary contracts for that purpose.
O'rdinary's power as to tax for repairing and erecting public buildings : 47 Ga., 639-
641. All in his discretion, supervised by the Judge of the Superior Court : 52 Ga., 233.
Illegality dismissed as against a tax fi. fa. : 60 Ga., 350.
§497. (531.) (469.) Public buildings and records. It is the duty of the Act of 17%.
Ordinaries to erect or repair, when necessary, their respective Court p ' 182-
Houses and jails, and all other necessary county buildings, to furnish each
with all the furniture necessary for the different rooms, offices or cells,
and to procure a fire-proof safe or safes, sufficient to hold at least all the
minute 'books and books containing records of judgments, books of
officers' bonds, all recognizances, the bonds of administrators and guar-
dians, the record of wills and of appraisements and sales, unless the
Court House has a fire-proof vault ; such books and papers, and all
others that can, must be placed in such safes or vaults at night, or
when the officers are absent.
Public agents are not individually liable : 2 Ga., 214. Discretion as to tax by Ordi-
nary, for: 52 Ga., 233. Illegality dismissed against a fi. fa. for taxes, decisions relative
to, discussed: 60 Ga., 350. Ordinary's power to tax for these purposes: 47 Ga., 641.
Section cited : 64 Ga., 501.
§498. (532.) (470.) Court House rooms. Such Ordinaries shall desig-
nate the rooms in the Court House to be occupied by each of the county
officers, and enter the same on their minutes, which they may change
from time to time as convenience may require. /? /7
§499. (533). (471.) Court Houses, jails, etc. The Court Houses, as well/^^
as jails, the public grounds and other county property, are placed iif^W^^^ *^
the keeping of the Sheriffs of their respective counties, subject to the r* C&^d^M^^^ ,
order of such Ordinaries, and it is their duty to preserve them from^^
injury or waste and to prevent intrusions upon them. /^VT^V'*
Construing Act of 1796 as to jails and jailers : 5 Ga., 186.
§500. (534.) (472.) Injuries to public buildings. If any person design-
edly destroy, injure or deface any of the public buildings, the appur-
tenances thereto, or the furniture inside, or shall use either for any
indecent purpose, such person shall be guilty of a misdemeanor, and
on conviction be fined or imprisoned, or both, at the discretion of the
Court, besides being liable for the damages.
§501. (535.) (473.) Jails, how constructed. The county jails hereafter
constructed must be of sufficient size and strength to contain and keep
120 PART I.— TITLE VI.— CHAPTER II.
Incorporation of counties, etc.
securely the prisoners and debtors which may be confined therein, arid
must contain at least three apartments, properly ventilated, so as to
secure the health of those confined therein — one for debtors, one for
criminals, and one for females.
Where the county was not liable for an insufficient jail : 19 Ga., 97. County should
keep good jail, and if guard needed for, should pay for: 9 Ga., 109. Not responsible
to Sheriff for damages for insufficient jail : 20 Ga., 845. County jail, unsafe can order
prisoner to another county: 26 Ga., 276.
§502. (536.) (474.) Extra tax, how levied. The Ordinaries of the several
counties have the power to levy an extra tax sufficient to carry into
effect sections 496 and 497, without a recommendation by the grand
jury, whenever the necessities arise.
Section cited and construed : 47 Ga., 639 ; 64/501. Illegality to tax fi. fa. dismissed,
and various decisions relative to, discussed: 60 Ga,, 351.
§503. (537.) (475.) On failure to levy an extra tax. If such Ordinaries
fail to comply with the requirement of said sections, or to levy the
tax, or levy an exorbitant tax, or levy one when unnecessary, their
conduct may be reviewed by the Judge of the Superior Court, by man-
damus or injunction, as the nature of the case may require, at the in-
stance of any tax payer of the county.
When order of Ordinary levying extra tax, is not void : 53 Ga., 194. Discretion of
Ordinary as to tax can be reviewed by the Superior Court bv injunction or mandamus:
52 Ga., 233. As to the extra tax : 60 Ga., 351.
/ a/^l^ §504. (538.) (476.) Public buildings and records, how inspected. It is the
^^f// u / duty °f ^ ne g ran( i juries to inspect all the public buildings and other
/^ J£j^<&eJrt*^> property of the county and the county records, and to report in their
$/jL I** general presentments their condition, and if they report that such Ordi-
/' /• ' naries have failed to comply with the law touching the same, it is the
duty of the Solicitor-General of the Circuit to commence proceedings
against them that they may be compelled so to do, if they do not in
good faith comply by the next term of the Superior Court.
§505. (539.) (477.) Duty of Judge of the Superior Court. The Judges
of. the Superior Court shall, when necessary, call the attention of the
grand jury to the duties required of such Justices in this chapter.
§506. (540.) County orders must specify the fund on which they are drawn-
id,) Acts of [The Ordinaries must audit all claims against their respective counties,
1871-2, p. 69. anc [ e very claim, or such part thereof as may be allowed, must be reg-
istered, and he or his clerk must give the claimant an order on the
treasurer for the same, and in the order he shall specifically designate
upon what particular fund such order is drawn, and out of which pay-
ment is to be made.] (a.)
Section construed: 39 Ga., 58.
County warrants: 13 O., 74, 559. Negotiability of: 4 C. L. J., 247, 390. Suit on : 27
Am. R., 261.
§507. (541.) (479.) Claims to be presented, when. All claims against
counties must be presented within twelve months after they accrue or
become payable, or the same are barred, unless held by minors or other
persons laboring under disabilities, who are allowed twelve months
after the removal of such disability.
Where it was held not barred until twenty years from the time of the assessment of
damages : 43 Ga., 259-261. Section cited and construed, as to the bar of the statute of
limitations in a suit brought by a county : 62 Ga., 231.
§508. (542.) (480.) Judgment vs. county. The private property of the
citizens of a county shall not be bound by any judgment obtained
against the county, but such judgment, if binding, shall be satisfied
from money raised by lawful taxation.
Freeman on Judg., §§178, 432, a. Mandamus to compel payment of judgment : 4
Wall., 435.
/
PART L— TITLE VI.— CHAPTER II. 121
Incorporation of counties, etc.
■ §508. (a.) County officers to make annual returns. It shall be the duty Acts of
of the Ordinaries, County Treasurers, Clerks of the Superior Courts, 1876 > p - 13 -
and Sheriffs of the various counties of the State, to make a return, un-
der oath, to the grand jury of their respective counties on the first day
of each term of the Superior Court, a just and true statement of the
amount of money received by them belonging to the county, the source
from which the same was received ; also, their expenditures, accompa-
nied with proper vouchers.
§508. (b.) Duty of grand juries. When the returns provided for in Acts of
the preceding section shall have been made, it shall be the duty of the 1876 ' p - 13 -
grand jury to examine the same, and if found correct, indorse their ap-
proval thereon, and attach the same to their general presentments, to
be filed in the Clerk's office of the Superior Court. But if found incor-
rect, it shall be the duty of the grand jury, through their foreman, to
return said returns to the officer making the same, plainly and dis-
tinctly setting forth in writing the grounds of their disapproval, and
requiring said officer to appear before said jury and explain the errors
complained of.
§508. (c.) Officer failing to make returns, how dealt with. Should any Acts of
officer fail or refuse to make the return required by section 66, it shall 1876, p- 14,
be the duty of the foreman of the grand jury to notify the presiding
Judge of said failure instanter; and it shall be the duty of said Judge
to issue an order requiring said delinquent officer to come forward and
make the return as required by said section, or in default, be attached
for contempt.
§508. (d.) Bridges between counties, how built. Whenever it becomes Acts of i88o
necessary to build or repair any public bridge over any water-course in -1, p - 1S2,
this State which divides one or more counties from each other, the Or-
dinary, commissioners of roads and revenues, or other county officers
having, in charge the roads, bridges and revenues of said counties
joining at such water-course, shall cause the same to be built or repaired
by letting out the contract therefor to the lowest bidder, at public
outcry, at the location of such bridge, after having advertised the letting
out of said contract as hereinafter provided.
§508. (e.) Notice required. Whenever the contract is likely to cost aActsofisso
sum greater than five thousand dollars, the proper officers of said coun- " 1 » p ' 132-
ties shall give notice in the public gazettes wherein the Sheriff's sales
fof such adjoining counties are advertised once a week for eight weeks,
and by posting a written notice at the Court House door of said ad-
joining counties, which advertisement and notice shall embrace such
details and specifications as will enable the public to know the extent
and character of the work to be done, and the terms and time of pay-
ment. When the work to be done is likely to cost less than five
thousand dollars, the notice shall be published, as provided in this
section, once a week for four weeks, and by posting, as heretofore pro-
vided in this section, for a like period of four weeks; and it shall
further be the duty of said officers to make out and post conspicuously
in their said offices, complete and minute specifications of the proposed
work, which shall be open to the inspection of the public, and said
officers may, in their discretion, employ some competent engineer or
builder to examine and prepare plans and specifications of such pro-
posed work, for which service he shall be paid reasonable compensation
by the said counties in the same proportion as said counties are required
to pay for said work.
§508. (f.) Bond of contractors. Contractors who are awarded contracts Acts of 1880
under this and the two preceding sections shall be required to give _1, p - 132,
bond in double the amount of the bid, with two good and solvent secu-
rities, who shall be required to justify, before signing said bond condi-
122
PART I.— TITLE VI.— CHAPTER III.
County and municipal bonds.
tioned for the faithful performance of the contract, and to indemnify
the counties for any damages occasioned by a failure to perform said
contract within the time provided, and to keep said bridge, or repairs
made thereon, in good condition for a period of time not less than seven
years, and that there shall be as many originals of said bond executed
as there are counties interested in said bridge, and that one of said ori-
ginals shall be filed with the proper authority representing each one of
said counties, to he kept as other official bonds.
§508. (g.) Repairs under five hundred dollars. The provisions of these
Acts of 1880 sections shall not apply to the repairing of any bridge when the same can
-i, p. 132. b e d one a t a less cost than five hundred dollars ($500.00) ; but such offi-
cers may have such repairing done by hiring hands and furnishing
material, or by private contract for such repairs.
§508. (h.) Payment, how made. The payment for all work done under
Acts of 1880 the provisions of the four preceding sections, shall be in accordance
-l, p. 132. w ith the provisions of section 678 of this Code, and that the remedy
to enforce payment from any of said counties shall be as provided in
section 679 of this Code : Provided, that nothing in these sections con-
tained shall affect any counties having local laws affecting this subject.
General Note. — Mandamus granted against the Inferior Court to compel them to
levy a tax for expenses of a county site : 5 Ga., 522 ; 36/398. Where the removal of a
county site was not an impairing of the obligation of contracts: 17 Ga., 56. Discretion
of commissioners as to selecting of a county site: 17 Ga.. 612. Injunction against an
alleged illegal selection of a county site: 44 Ga., 163.
General Note on Counties. — Not liable for injury caused by defective construction
and lighting of Court House: 36 Am. R., 236; 35/151, n, 159. Mandamus to compel
County Board to build jail : 25 Am. R., 461. County not liable for damages caused by
erection of jail adjoining private house, although amounting to nuisance: 25 Am. R.,
497; 5 C. L. J., 435. County liable for pest-house, erected near private dwelling: 28
Am. R., 654. See notes on Municipal Corporations, under §1672.
CHAPTER III.
COUNTY AND MUNICIPAL BONDS.
Section, •-■
508. (i.) Notice to voters.
508. (j.) Election, how held.
508. (k.) Bonds, issued when.
Section.
508. (1.) Number of votes, how determined.
508. (m.) Collection of bonds, how enforced.
§508. (i.) 'Notice of election on issue of bonds. When any county, mu-
Acts of 1878 nicipality or division shall desire to incur any bonded debt, as pre-
-9, p. 40. scribed in paragraphs 1 and 2, section 7, article 7 of the Constitution
of 1877, the election required shall be called and held as follows, to-wit :
The officers charged with levying taxes, contracting debts, etc., for the
county, municipality or division, shall give notice for the space of thirty
days next preceding the day of election in the newspaper in which the
Sheriff's advertisements for the county are published, notifying the
people (qualified voters) that on the day named an election will be
held to determine the question whether bonds shall be issued by the
county, municipality or division. In said notice he shall specify what
amount of bonds are to be issued, for what purpose, what interest they
are to bear, how much principal and interest to be paid annually, and
when to be fully paid off.
§508. (j.) Election, how held. Said election shall be held at all the
Acts of 1878 voting or election precincts within the limits of the county, muni-
-9, p. 40. c ipality or division, and shall be held by the same persons and in the
PART I— TITLE VI.— CHAPTER IV.
123
Article 1.— Change oi county lines.
same manner, under the same rules and regulations that elections for
officers of said county, municipality or division are held, and the returns
shall be made to the officers calling or ordering the election, who shall, ■
in the presence and together with the several managers (who bring up
the returns), consolidate said returns and declare the result.
§508. (k.) Bonds may be issued, when. When said notice is given and Acts of 1878
said election held in accordance with the preceding section, if the~' p ' 4 '
requisite two-thirds of the voters of the county, municipality or divis-
ion at said election vote for bonds, then the authority to issue the bonds
in accordance with paragraphs 1 and 2, section 7, article 7 of the Con-
stitution is hereby given to the proper officers of said county, munici-
pality or division.
§508. (1.) Number of votes, how ascertained. In determining the ques- Acts of 1878
tion whether or not two-thirds of the qualified voters in said county, ~ 9, p ' 40 "
municipality or division voted in favor of the issuance of said bonds,
the tally sheets of the last general election held in said county muni-
cipality or division shall be taken as a correct enumeration of the
qualified voters thereof.
§508. (m.) Collection of bonds. The owners of said bonds, when due, Act ofi878
may, if necessary, enforce the collection thereof by suit in the proper 9 p " 40.
Court.
General Note on Chapter III. — County bonds in aid of railroad : 3 0. 502 ; see
also note on Bonds, in General Note on Corporations, and note on Municipal Bonds,
•under §1672. Elections: 21 How., 539; 16 Wall., 644; 4 0., 801; 5/360.
CHAPTER IV.
CHANGE OF COUNTY LINES AND COUNTY SITES.
Article 1. — Change of county lines.
Article 2. — Change of county sites.
ARTICLE I.
change of county lines.
^Vtffc-*-**-^
Section.
508. (n.) Petition for change.
508. (o.) Notice of application, etc.
508. (p.) Oath of jurors.
508. (q.) Verdict and survey.
508. (r.) Record of proceedings.
Section.
508. (s.) Effect of verdict.
508. (t.) Unknown and disputed lines
508. (u.) Record of plats.
508. (v.) Umpire.
508. (w.) Fees of surveyors.
§508. (n.) Application for change of line. Any citizen owning land Acts of 1878
adjacent to the boundary line of any county in this State who may de-~ 9, p ' 42 '
sire, for the necessity or convenience of performing the duties, of citizen-
ship, to have such lands transferred to an adjoining county, such citi-
zen .shall petition the Ordinary of the county in which the land is situ-
ated for an order to have such transfer perfected, and it shall be the
duty of such citizen to fully set forth in said petition the reasons for
such transfer.
§508. (o.) Notice of application. It shall be the duty of the Ordinary,
after giving sixty days' notice of such application, by publication in
the newspaper in which the county advertisements are published, and
by posting a written notice at 1(he Court House and at the Court-
ground in the militia district from which said territory is proposed to
be taken, to empanel a jury of twelve men to be obtained from the list
of grand jurors drawn for the ensuing term of the Superior Court, by
12 PART L— TITLE VL— CHAPTER IV.
Article 1. — Change of county lines.
striking from said list all but the twelve; and it shall be the duty and
privilege of the Ordinary and the applicant for the change, to strike
alternately until only twelve remain, who shall compose the jury, and
whose duty it shall be, after hearing the evidence, to find, by recom-
mendation for or against the change, that on the day or before the
hearing of said application, as herein provided, any citizen of said
county may file with the Ordinary his written objections to such
change, which shall go to make up the pleadings in said case, and the
applicant in each case shall be liable to pay all cost.
§508. (p.) Oath of jurors. The jurors, before hearing the evidence*
Acts of 1878 shall have administered to them the following oath, to-wit : " You, and
-9, p. 42. each of you, do solemnly swear that you shall make such verdict and
recommendation as in your judgment shall best subserve the best
interest of this county, as well as the interest and convenience of this
applicant. So help you God."
§508. (q.) Second verdict and survey. Should said jury find for the
Acts of 1878 applicant, and recommend that said transfer be made, the same shall
-9, p. 42. \)q submitted to a jury of twelve from the county to which the above
named territory is proposed to be attached, under the same provisions
and regulations as is provided in section 508 (o); and, if said jury
should concur in the recommendation of said transfer, it shall then be
the duty of the Ordinary to appoint three commissioners who shall,
with the county surveyor, make a careful survey of the county line so #
affected, giving the courses, bearings and distances, and return a cer-
tified copy of the same to said Ordinary to be filed with the records of
his office, after the same shall have been recorded in the office of the
Clerk of the Superior Court of said county.
§508. (r.) Record of proceedings. It shall be the duty of said Ordinary
Acts of 1878 to transmit a certified copy of all proceedings, with the seal of his office
-9, p. 42. thereto attached, to the Clerk of the Superior Court of the county to
which said land has been transferred, who shall enter the same on the
records of his office, and file said copy as other papers of record.
§508. (s.) Effect of findings. The findings of the jury, as herein pro-
^p.^ 1878 vided, shall be final and conclusive upon the question submitted.
§508. (t.) Remarking lines unknown or disputed. Whenever the grand
jury at any term of the Superior Court, in any one of the counties of
this State, shall, in their general presentments, recommend that the
county line, or any portion thereof, between said county and some other
county adjoining, which is undefined, unknown, or in dispute, be re-
surveyed and established, it shall be the duty of the Ordinary of said
county to forthwith transmit a certified copy of said presentments to
the Ordinary of the said adjoining county ; and it shall be the duty of
the Ordinaries of each of said counties to forthwith notify and direct
the County Surveyors of their respective counties to run off, mark,
and define said county line, taking all due precaution to arrive at the
true line. •
§508. (u.) Line, how run off. It shall be the duty of said County Sur-
veyors to meet at some convenient place on said county line to be
opened and agreed upon by them, and further run off, define and mark
by suitable blazes or posts along said heretofore undefined or disputed
line, and to make two plats of the same, one of which shall be filed and
recorded in the Clerk's office of the Superior Court of each of said
counties, and the line so surveyed shall then be known and established
as the line between said counties.
§508. (v.) Umpire called, when. In case the County Surveyors above
mentioned cannot agree as to the said undefined or disputed line, then
it shall be their duty to call in any competent surveyor of either one of
the counties mentioned, or any County Surveyor of an adjoining, or
PART I.— TITLE VI.— CHAPTER IV.
(
m
Article 2.— Change of county sites.
; any other county they may agree upon, and the three surveyors settle
| said disputed line, making a plat as required above, the same to be re-
corded in the manner above mentioned.
§508. (w.) Fees of surveyors, how paid. The fees of each of the sur-
veyors aforesaid shall be three dollars per day, to be drawn out of the
county treasury of said counties, and the fees of the surveyor who
may be called in as umpire, to be paid one-half by each of the above
mentioned counties whose lines are undefined and in dispute,, and the
time for which said surveyors are to be be paid shall include the time
required in going to and returning home from the survey.
ARTICLE II.
CHANGE OF COUNTY SITES.
Section.
508. (x.) Application for change.
508. (y.) Election, how held.
Section.
508. (z.) Ballots, how indorsed.
608. (a. a.) Evidence of result.
§508. (x.) Application for change, how made. Whenever two-fifths of Acts of is?s
the poll-tax payers (as shown by the Tax Receiver's digest last made ~\ v ' 44 ' ^/s^*£
out) of any county in this State shall petition, the Ordinary of any^f' * *7^
county for the removal or change of the county site of said county, said /^y 7 - /•
Ordinary shall at once grant an order directing an -election to be held
j at the various election precincts in said county, not less than forty nor
I more than sixty days hence, notice of which election shall be pub-
lished weekly for four weeks in the newspaper in which the Sheriff
publishes his legal notices, previous to the day of said election, at
which election all persons qualified to vote for members of the General
Assembly are hereby declared qualified to vote at said election.
§508. (y.) Election, how conducted. Said election shall be held and Acts of 187S
| conducted, and returns made thereof, as is provided by law for mem-" 9 ' p - 44 -
bers of the General Assembly of this State.
§508. (z. ) Indorsement on ballots. At said election all voters in favor Acts of ists
of removal, and to what place, shall indorse on their ballots "For re-~ 9 ' p44,
moval," and those who are opposed to removal shall indorse on their
ballots " Against removal," and if it shall appear that two-thirds of the
votes cast at said election are in favor of removal to any one particular
place, the General Assembly next convening after said election, may
provide for the removal of said county site by appropriate legislation.
§508. (a. a.) Evidence of election. The certificate of the Secretary of Acts of isw
State, showing that said election was held, and that two-thirds of the ~ 9 ' p ' 44,
qualified voters of said county (as indicated by the tax digest, as in
section first) voted at said election in favor of " removal," shall be suffi-
cient evidence of the holding of said election and the number of votes
cast.
126
PART I.— TITLE VL— CHAPTER V.
Article 1.— From taxation.
CHAPTER V.
COUNTY REVENUE.
Article 1. — From taxation.
Article 2. — From other sources.
ARTICLE I.
FROM TAXATION.
Section.
509. Tax for county purposes.
610. Dutv of Ordinaries.
611. Failure of grand jury to recommend.
612. When there are several grand juries.
513. Creditors of the county.
514. Objects of a county tax.
514. (a.) Tax for the poor.
515. When debts exceed amount raised.
516. The order must specify the object.
517. Must be advertised for thirty days.
Section.
518. Specific taxes.
519. How entered, collected and paid out
620. Collector's fees and liabilities.
521. Mode of allowing commissions.
522. Payment of county tax, etc.
523. Persons holding county tax.
624. Failing to pay, execution may issue.
525. Illegality— when— bow tried.
626. Persons borrowing county funds.
527. The Ordinary may remit.
§509. (543.) (481.) Tax for county purposes. The Ordinaries have
Act of i82i, power to raise a tax for county purposes, over and above the tax they
c. p. 184. are hereinbefore empowered to levy, and not to exceed fifty per cent.
13943. upon the amount of the State tax for the year it is levied, provided
two-thirds of the grand jury at the first or spring term of their respec-
tive counties recommend such tax.
Bond taken from the tax collector for the due collection of such tax as well as all
t proceedings on the bond are void ; where this has been done before such recommenda-
tion : 18 Ga., 47. A tax levied wrongfully for school fund, under this section, cannot
be directed to county purposes, nunc pro tunc: 20 Ga., 102-104. A tax for public build-
ings, assessed under an act authorizing an extra tax for county purposes, is void : 27
Ga., 354. There is no power to levy an extra tax for county purposes on the capital
stock of a bank: 28 Ga., 121. By virtue of the power granted in this section, a tax so
recommended might be imposed to pay petit jurors, and for paling in the Court House :
34 Ga., 370. Abuse of the taxing power will not be presumed: 34 Ga., 370. Power as
to taxation enlarged by the Code : 34 Ga., 370. What not subject to county tax, where
capital stock of a railroad taxed as specified in the charter, any other like property
taxed by the county : 40 Ga., 647. Where an extra tax, not to exceed fifty per cent, of
the amount of the State tax for the year it is levied : 47 Ga., 639. Injunction against
tax : 42 Ga., 229. One hundred per cent, of the county tax of 199 per cent, was recom-
,; mended by the grand jury, and the rest of the tax authorized by the local act : 60 Ga.,
349. Refers to this last above case, and is governed by it: 60 Ga., 298. Tax for the
small-pox ; the third section of the Act of 1866 authorizing a tax for, is law although
it was not inserted in the Code of 1873 : 52 Ga., 406.
§510. (544.) (482.) Duty of Ordinary. . It is the duty of such Ordi-
naries to see that by the time of the organization of such grand jury
they shall have prepared by their County Treasurer, under their su- ;
pervision, a statement of the financial condition of the county, and
the amount of tax required to discharge the county liabilities for that
year, which shall be by the treasurer presented to the foreman of the
grand jury on the first day of Court for inspection by that body.
§511. (545.) (483.) Failure of grand jury to recommend. If from any
Acts of 1880 cause such grand jury is not impaneled, or they adjourn without tak-
-l, p. 4i. i n g anv action thereon, or they refuse to make such recommendation
sufficient to discharge any judgment that may have been obtained
against the county, or any debt for the payment whereof there is a
mandamus, or the necessary current expenses of the year, such Ordina-
ries may levy the necessary tax without such recommendation. And in
all cases when the spring term of the Superior Court of any county
PART I.— TITLE VI.— CHAPTER V. 127
Article 1.— From taxation.
in this State has heretofore or may hereafter be adjourned, suddenly or
; unexpectedly, before the grand jury shall have made their general
: presentments, it shall be lawful for the officer or officers whose duty it
may be to levy a county tax, to levy the same to the full extent and
for any purpose that a recommendation of such grand jury would have
authorized : Provided, such tax shall not exceed the levy last recom-
: mended by a grand jury for such county.
Under this section the Ordinary had in this case only the right to levy such tax, not
exceeding fifty per cent, of the State tax : 42 Ga., 229. Where part of the tax was
recommended by the grand jury, and the rest was authorized by the local act : 60 Ga.,
351. Refers to above case, and that seventy-five per cent, of the tax in that case was
for bridges, which needed no recommendation of the grand jury: 60 Ga., 298. Con-
struing this section and section 509, limits the tax still to fifty per cent, on the State
tax : 52 Ga., 234-8.
§512. (546.) (484.) Where there are several grand juries. Where there
are several grand juries impaneled during such term the recommenda-
tion of either panel shall be sufficient authority, but if there are coun-
ter-presentments on the subject it shall be as though there had been
an entire failure to report thereon.
§513. (547.) (485.) County creditors and tax payers. The right of a
creditor of a county to compel such tax levied, or cf a tax payer to re-
sist it, is the same as set forth in section 503, touching tax for build-
ing.
§514. (548.) (486.) Objects of county tax. County taxes shall be assessed
for the following purposes :
Every order assessing a tax should specify the per cent, laid for each of nine specific
purposes mentioned in this section : 39 Ga., 56-58.
1. To pay the legal indebtedness of the county due, or to become
due, during the year, or past due.
2. To build or repair Court Houses or jails, bridges or ferries, or other
public improvements, according to the contract.
Where seventy-five per cent, of the tax was for bridges, which needed no recom-
mendation of the grand jury: 60 Ga., 298. As to what limits in the tax for bridges:
34 Ga., 370.
3. To pay Sheriffs, jailers, or other officers' fees that they may be
legally entitled to, out of the county.
The Legislature may provide for the payment of such costs as are not paid by the
fines and forfeitures found, by a levy of a tax : 39 Ga., 578.
4. To pay coroners all fees that may be due them by the county for
holding inquests.
5. To pay the expenses of the county, for bailiffs at Courts, non-resi-
dent witnesses in criminal cases, fuel, servant hire, stationery, and the
like.
Section cited and construed: 48 Ga., 349. No pay to non-resident witnesses of the.
county for testifying before a committing Court: Commissioners of Floyd County vs.
Black (Famph., Sept., 1880, p. 28). List of statutes relating to this subject: 34 Ga.,
370. Tax for the county poor: 34 Ga., 370. Tax raised illegally: 20 Ga., 102. On this
section and section 516 : 39 Ga., 56. Tax to compensate the owners of town lots for
damages sustained by removal of the county site : 43 Ga., 258.
6. To pay jurors, when by the local law they are allowed a per diem §3943.
compensation.
7. To pay expenses incurred in supporting the poor of the county,
and as otherwise prescribed by this Code.
8. To pay charges for educational purposes, to be levied only in
strict compliance with the law.
9. To pay any other lawful charge against the county.*-'
*See Constitution of 187T, Art. 7, Sec. 6, par. 2. . •
128 PART L— TITLE VI— CHAPTER V.
Article l.-~From taxation.
§514. (a.) Tax for support of paupers. The county authorities who
Acts of 1880 are charged with the control of the finances of their county shall be,
-i ( }\ 49. an( j are hereby, authorized to levy a tax for the support of the paupers
of their county which shall not exceed twenty-five per cent, upon the
amount of the State tax for the year such pauper tax is levied.
§515. (549.) (487.) Tax not sufficient. When debts have accumulated
against the county so that one hundred per cent, on the State tax, or
the amount specially allowed by local law, cannot pay the current ex-
penses of the county and the debt in one year, they shall be paid off as
rapidly as possible, at least twenty-five per cent, every year.
§516., (550.) (488.) Order must specify. As soon as the county tax is
(a) Acts of assessed for the year, it shall be done by order of such Ordinaries and
1862-3, p. 60. en tered on their minutes, which must specify the per cent, levied
for each specific purpose. The assessment applies to every species of
value or specifics which is taxed by the State, [including the value of
shares in any railroad that is in running condition, or banking com-
pany owned by any person either in their own right or in the right of
another ; and such owner shall return the number and value of such
shares with his other taxable property ; but such shares shall not be so
taxed if it interferes with the previous vested rights of the railroad or
bank under its charter.] (a.)
On this section and section 514: 39 Ga., 56. Section cited, and the order should
specify the object and purposes for which the extra tax was levied: 47 Ga., 639. The
section cited and the Constitution of 1877 in regard to taxes commented on: 64 Ga.,
498-500.
§517. (551.) (489.) Order to be advertised. The Ordinaries must adver-
tise immediately a copy of such order for thirty days at the door of the
. Court House and in a public gazette, if one is published within the
limits of their respective counties, and furnish the tax collector with
another copy.
§518. (552.) (490.) Taxes for specified purposes. Taxes raised for edu-
cational purposes, or the support of the poor, or any other specific pur-
pose, must be used for such purpose, respectively, and none other.
§519. (553.) (491.) How collected and paid out. All taxes so levied for
(a) Acts of county purposes must be assessed upon the tax receiver's books for each
1872, p. 78. year, and collected by the tax collector, who shall pay the same to the
County Treasurer. [It shall be the duty of the tax collector to receive
jury certificates when properly authenticated, as far as they will go
toward paying the county tax of the person holding the same, for all
taxes due by the tax payers of this State to their respective coun-
ties, (a.)
§520. (554.) (492.) Collector 's fees. The tax collectors shall be allowed
the same commissions and fees for such collections as they are allowed
by law for the collection of the State tax, and are liable to the same
fines and forfeitures for any default or improper conduct.
§521. (555.) Commissions, how assessed. [The Ordinaries, in allowing
(b) Acts of collectors their commissions for collecting the taxes levied by their
1861, p. 8i. respective counties, are authorized and required to aggregate the taxes
•for the various purposes levied, and to allow commissions on the whole
amount, in accordance with the schedule from which the Comptroller-
General is authorized to allow commissions to collectors for collecting
the State tax], (b.)
§522. (556.) ^(493.) Payment, how enforced. Any other remedy or right
•Act of 1796, allowed by law for the enforcement of the collection and payment of
Ac?of 8 i8i5 ^ ne State taxes, either by the Comptroller-General or tax collector, may
c. p. 1062. ' be used for the county taxes by the Ordinaries.
Act of 1825, J J
C. p. 1066. The act of 1796 was constitutional as far as it conferred the right to issue executions
against collectors, receivers, etc. : 5 Ga., 186-193. When the Comptroller-General
PART I.— TITLE VI.— CHAPTER V.
12!)
Article 2.— From other sources than taxation.
could not issue an execution against one purporting to be a tax collector, and who was
in default: 3 Ga., 233-8. Section cited and commented on : 47 Ga., 63&-642. Section
cited and no notice need be given where tax fi. fa. against tax collectors and sureties :
60 Ga., 296.
§523. (557.) (494.) Persons holding county tax. Such Ordinaries shall
also have authority to compel all persons, their heirs, executors or ad-
ministrators, who have or may have in their hands any county money,
collected for any county purpose whatever, to pay over the same.
The law in this section discussed: 11 Ga., 335. A fi. fa. issued by the Ordinary
against the administratrix of a former tax collector and his sureties for his default : 60
Ga., 298.
§524. (558.) (495.) On failure to pay. On failure to pay the same, such Act of nut;,
Ordinaries shall issue executions againt such persons and their securi- c * p " l2
ties, if any, for the full amount appearing to be due, as the Comptrol-
ler-General issues executions against defaulting tax collectors.
How far the Act of 1796 was constitutional, so far as it gave the right to issue exe-
cutions against collectors, receivers, etc. : 5 Ga., 186-193. Section cited: 60 Ga., 298.
§525. (559.) (496.) Illegality. If such execution shall issue for too
much, or if defendant denies on oath owing any part thereof, he may,
by filing an affidavit of illegality, according to the rules governing
other illegalities, cause an issue to be formed thereon, which shall be
tried by a special jury at the first term of the Superior Court there-
after.
Act of 1804 (C, p. 1051), prohibiting judicial interference with the collection of taxes,
does not extend to county taxes : 27 Ga., 354-357. A tax collector should not say the
tax was illegal: 60 Ga., 297. A fi. fa. against the Ordinary may be contested by ille-
gality 54 Ga., 498. Affidavit of illegality by administratrix of a collector: 60 Ga., 296.
§526. (560.) (497.) Persons borrowing county money. The provisions of
the foregoing four sections are applicable to all persons and their sure-
ties who may borrow, or pretendedly borrow, any county money from
any person having custody thereof, and shall be, in all respects, held
as holders of county funds.
[Sec. (561.) Repealed by Constitution of 1868, Article 1, clause 18.] Act of 1S45,
§527. (562.) (499.) County tax maybe remitted. In all cases where c - p - 107 ' -
persons have been overtaxed, or for any other cause taxes are claimed
to be remitted, refunded, or in any manner claimed against, the Ordi-
naries shall be authorized to hear and determine such application to
the extent of the interest of the county therein.
ARTICLE II.
PROM OTHER SOURCES THAN TAXATION.
Section.
528. Sources of the county revenue.
529. Retail licenses, shows, etc.
530. Licenses issued for one year.
531. Retailing spirits without license.
532. Exhibiting shows, etc.
533. Peddling without license.
534 Disabled soldiers may peddle.
Section.
535. Tax payer may demand a license.
536. Violations of preceding sections.
537. Duty of Ordinary in relation to shows.
538. Special defense, how made.
539. Damages against defendants.
540. Not to interfere with Penal Code.
541. Money raised, how appropriated.
§528. (563.) (500.) Sources of county revenue. All sum's which are paid
into the county treasury for the following accounts make a part of the
county revenue, viz :
Section cited: 64 Ga., 501.
1. For the authorized sale of any county property, unless otherwise
directed.
2. For the rent or hire of any county property.
3. For shows or exhibitions.
9
130 PART I.— TITLE VI.— CHAPTER V.
Article 2. — From other sources than taxation.
4. For licenses to sell spirituous liquors in any quantity.
5. From estrays.
6. From licenses to peddle.
Section cited : 55 Ga., 686.
7. From any other sources.
§529. (564.) (501.) Retail licenses, exhibitions, etc. The county charges
for such licenses are as follows :
To retail spirituous liquors '. $25 00
To sell spirituous liquors, not by retail, in quantities less than one gallon 5 00
Acts of 1820, To peddle within the county, unless otherwise provided by the Ordinary under the law. 50 00
C. p. 184. To exhibit shows with horses 10 00
To exhibit animals, beasts, and the like 10 00
Acts of 1835, To exhibit any pictures or figures. 5 00
0. p. 185. To exhibit any other show, not less than $5 00, nor more than $25 00 r as the Ordinary
may order.
To exhibit theatricals or musical entertainments, for profits to the proprietor, not more
than $5 00 on each exhibition, and subject to contract with the Court.
§530. (565.) (502.) Licenses for one year. All such licenses, except
gi42i. exhibitions, are for the term of one year, extending to the county
limits ; but license to retail or sell spirituous liquors will only author-
ize, either by the person in whose name it issues or his clerk, to sell at
some one fixed place in the county, which must be specified in the
license.
§531. (566.) (503.) Retailing without license. If any person retails or
sells spirituous liquors without first obtaining such license, or, having
obtained it, sells at any other or more places than the one fixed in the
license, or transfers it and allows it used by any other person than him-
self or an authorized clerk, he forfeits to the county, for each violation,
twenty-five dollars.
§532. (567.) (504.) Exhibitions, etc., without license. If any person ex-
hibits any show without first obtaining such license, or exhibits a show
different from that for which he obtained license, he forfeits to the county
three times the cost of license for each exhibition.
§533. (568.) (505.) Peddling without license. If any person, except a
disabled soldier of this State, peddles without first obtaining such
license in counties where the Ordinaries take no action regulating
peddling, he forfeits to the county one hundred dollars for the first act of
peddling, and, for each month thereafter twenty-five dollars more.
Section cited, who are peddlers, forfeiture : 55 Ga., 686.
i C&+*jf .<&**£<*£**-*-**> §534. (569.) Maimed ^^ra^jft^shall be lawful for any disabled sol-
/cf J?* &4^ (a) Acts of dier of this State to pedcfle^m arf^county or counties thereof without
z .-__ ' y paying license tor the priviles
paying license for the privilege of so doing ; and a certificate from the
/ %~ y\ ^^J-^^-i Ordinary Qf any county, stating the fact of his being such disabled
- "**- ' soldier, shall be sufficient evidence thereof: Provided, that this section
shall not authorize peddling ardent spirits, and provided, also, that the
/ay- /. /v^« /• ^ ** * privileges hereby granted shall not be transferred to or used by any
> ^/~~Zab^b other person, (a.)
Z^t***-*^ ^ §535. (570.) (506.) Tax payer may demand license. Any tax payer of
yy</. //"rT a county may call upon any person in pursuit of any occupation for|
A?J? / C \' which a license must be obtained to exhibit his license, and, if he fails,
/J so to do, it shall be sufficient grounds, on making affidavit of the fact,!
to cause such forfeiture ; and if, on investigation, it appears that he has|
such license, he forfeits the sum of ten dollars and costs.
Process should be issued against the person who travels and vends without license !
51 Ga., 330.
§536. (571.) (507.) Violations, how punished. If any Ordinary, of his
own knowledge, knows of the violation of the foregoing three sections,
or if any person will make affidavit of such fact, it is the duty of the
sereral Ordinaries of this State, unless they know to the contrary, to
PART L— TITLE VI.— CHAPTER V. 131
Article 2. — From other sources than taxation.
issue a process, directed to all and singular the Sheriffs and constables
of this State, for the amount of such forfeit, commanding them to levy
on sufficient of the property, real or personal, of the defendant to satisfy
the same and costs, and to levy and sell the same as in case of attach-
ments ; and in default of finding goods enough for such purpose, to ar-
rest such defendant and him safely keep as in cases of persons under
ca. sa.* Such process must be returned to the Court whence it issues.
§537. (572.) (508.) Shows, exhibitions, etc. If any show is on exhibition
in any county without the license required, it is the duty of the Ordi-
nary instanter to place such process in the hands of such officer; and if,
on presentation of the license fee required and all costs are instanter
paid, it shall discharge the same, but not otherwise; but. if such course
is not taken, it is no waiver of such forfeiture.
§538. (573.) (509.) Persons may defend. Persons against whom such
process may issue may arrest the same by swearing that they have not
violated the law on account of which process has issued, and by other-
wise complying with the provisions of the section against persons
holding county funds, and which shall be returned and tried in the
same manner.
§539. (574.) (510.) Damages. If, on the trial of such issue, the jury
who tries shall believe that such affidavit was filed for delay only, or
is without any excuse to sustain it, they shall so state in their verdict,
and if they so find, the defendant shall pay twenty-five per cent, addi-
tional.
§540. (575.) (511.) Not to interfere with the Penal Code. The penalties
and forfeitures hereinbefore set forth are not to interfere with any pro-
vision of the Penal Code, that is or may be enacted, making such acts
penal.
§541. (576.) (512.) The moneys arising from such licenses are to be Act of i835 r
paid to the County Treasurer, to be used for county purposes, but one- c " p " 184 "
half of moneys arising from forfeitures go to the informers.
[Sec. (577.) Repealed by the Constitution of 1868, Art. 5, Sec. 14.]
*Is this in force since imprisonment for debt was abolished ?
132
PART L— TITLE VL— CHAPTER VI.
Article 1.— County Treasurers.
CHAPTER VI.
COUNTY OFFICERS NOT HEREINBEFORE SPECIFIED.
Article 1.— County Treasurer.
Article 2. — County Surveyor.
Article 3. — County Coroner.
ARTICLE I.
COUNTY TREASURERS.
Section.
542. Election and term of office.
543. Must give bond and take an oath.
544. Term of office.
545. Vacancies, how filled.
546. Qualifications.
547. Clerk being appointed Treasurer.
548. Oath of the County Treasurer.
549. Amount of his bond.
549. (a.) Obligation of sureties.
550. Appointment to fill vacancies.
551. County funds, by whom received, etc.
552. His office, where kept.
553. Treasurers' duty, etc.
Section.
554. Books to be furnished.
555. Books, etc., where deposited.
556. Debts of county, what order paid.
557. County orders, when payable.
558. Persons holding orders.
559. Orders not paid for want of funds.
560. County orders negotiable.
561. Treasurer shall not purchase.
562. Buying at a discount, etc.
563. Treasurer failing to pay over.
564. Must turn over books, etc.
565. Final settlement on retiring.
§542. (578.) (514.) Election and term of treasurer. [County Treasurer
< c. p. 2ii. °' are elected by the qualified voters of their respective counties, and hole
,/ a \ const of their offices for two years and until their successors are elected anc
1868, Art. 9. qualified], ( a.)
: Act's of 1827, [Sections 579 and 580 repealed by Constitution of 1868, Article V
p- 82 y? 'section 14.]
jf t f.^r-J*!*. + £-9+*c^o. §543. (581.) (517.) Oath and bond. No appointment or election i
/ a/^V: effectual until bond and security is given and the oath of office taker
Giving bond and security is a condition precedent before a county treasurer can ente
on his office (citing Act of 1825, C, p. 211) : 9 Ga., 185.
Brandt S. & G., §§455, 446.
Acts of i82i, §544. (582.) (518.) How removed. They may be removed in the sam
c. p. 211. manner that Clerks of the Superior Courts may be.
Vacancies are filled as vacancies ill
/;
Acts 1876, p,
15,
./y.
§545. (583.) (519.) Vacancies.
other county offices are filled.
§546. (584.) (520.) Qualifications. No other conditions of eligibilit j
are required save those that apply to all other officers, but no othe
officer can be County Treasurer.
§547. (585.) (521.) Oath and bond, where filed. His oath of office mus
Act.sofi838.be entered on the minutes of, and filed in the office of, the Ordinary
c. p. 215. an( j fas official bond must be filed and recorded in said office.
§548. (586.) (522.) Oath. County Treasurers, before entering on thi
duties of their office, besides the oath required of all civil officers, mus
take the following oath, viz:
"I, , do swear I will faithfully collect, disburse and account fc]
all moneys or other effects of the county, and otherwise faithfulty di
charge all the duties required of me by law as County Treasurer. £i
help me God." J#
§549. (587.) (523.) Amount of bond. They shall also, within 4e** daj
from their election or appointment, give a bond payable to the Ordjj
nary of the county, with securities to be by him approved, in a sui j
!
PART I.— TITLE VI.— CHAPTER VI. 133
Article 1. — County Treasurers.
which, in his judgment, will be double the amount of the county tax
for the ensuing year, receipts from other sources, and cash on hand.
§549. (a.) Securities, how bound. When any official bond hereafter to Acts of istg,
be executed by any County Treasurer, or any person acting as such, the p '
property of said treasurer, or any person so acting, as well as the se-
curity or securities on said bond, shall be bound from the time of the
execution thereof, for the payment of any and all liability arising from
the breach of said bond.
§550. (588.) (524.) Appointees to fill vacancies must give bond. The bonds
of appointees to fill vacancies shall be likewise in his discretion, taking
into consideration the amount that may come into their hands and for
double such amount.
§551. (589.) (525.) County funds. All county funds are to be paid to,
and disbursed by, the County Treasurer, except such as may be speci-
ally excepted by law, and then to be collected and disbursed as specially
directed.
When the County Treasurer is not entitled to commissions out of the county funds :
60 Ga., 556. Since the Act of 1872, the county commissioner, and not the County
Treasurer, is the legal custodian of the school fund : 60 Ga., 558.
§552. (590.) (526.) Office, where kept. He must keep his office at the
county site, or at some place within one mile of the Court House.
§553. (591.) (527.) Duty of County Treasurers. It is their duty — Act of 1825,
1. To diligently collect from all officers and others all county dues. Jcfofttw
Section cited: 64 Ga., 679. Act 0^1859,
2. To examine the minutes and execution dockets of the different
Courts of the counties, to demand and receive all moneys appearing to
be due thereon, and to institute proceedings against defaulters.
3. To pay without delay, when in funds, all orders, according to their
dates, (or other debts due,) and when not in funds as hereinafter pre-
scribed.
Section cited : 64 Ga., 679.
4. To take a receipt on each order when paid and carefully file it
away.
5. To keep a well bound book in which shall be entered all receipts,
stating when received, who from, and on what account, and all amounts
Ipaid out, stating when paid, to whom, and on what account.
6. To keep a well bound book in which shall be entered a full de-
scription of all county orders, or other forms of indebtedness, as they
are presented ; to record a copy of the orders of the Ordinary levying
county taxes.
7. To exhibit to the first grand jury at the first session of the Supe-
rior Court of each year, a full statement of the condition of the county
treasury up to that time, and on the second Monday in January, an-
nually, to file with the Ordinary a full statement of his account, ac-
companied by his vouchers for the preceding year, together with his
3stimate of the indebtedness of the county for the ensuing year, and
the means of providing therefor, and to place his books before either of
said bodies for examination when called upon.
8. To appear before the Ordinary or grand jury to render an account
of his actings and doings as County Treasurer, and to exhibit his books
and vouchers whenever notified.
Section cited : 64 Ga., 679.
9. To publish at the door of the Court House, and in a public ga-
zette, if there is one published in the county, a copy of his annual
statement to the Ordinary.
134 PART L— TITLE VI.— CHAPTER VI.
Article 1. — County Treasurers.
§554. (592.) (528.) Books, etc., furnished by the county. All books and sta-
tionery the County Treasurer may require must be furnished at the ex-
pense of the county.
§555. (593.) (529.) Books, etc., when deposited. When the books of
such treasurer are full, they, together with the vouchers or other files
relating thereto, or connected with the office, must be deposited in the
office of the Ordinary and afterwards be part of his records.
§556. (594.) (530.) Order in which the county debts are paid. When
there are funds enough to pay all outstanding orders and other forms
of indebtedness due, which the treasurer may be authorized to pay, they
may be paid indiscriminately without regard to their dates; when there
is enough to pay all dated anterior to some particular dates, all such
may be likewise paid indiscriminately; when there is not enough to
pay all of equal degree, they shall be paid ratably ; under all other cir-
cumstances, they shall be paid in the order of their dates.
Section construed as to the order of payment : 39 Ga., 56-58.
§557. (595.) (531.) County orders. No order shall be paid until after
five days from its date and delivery, unless otherwise specially ordered,
that the Ordinary may furnish in the meantime the County Treasurer
with a full statement of all orders issued, which shall be by him im-
mediately registered, and when so registered shall be paid according to
law without further notice to the treasurer previous to the time of
payment.
§558. (596.) (532.) Failure to present county orders. If any person holding
county orders shall fail to present them by the first day of December
of each year to the County Treasurer for payment, they shall be post-
poned to all orders which were so presented and not paid for want of
funds.
§559. (597.) (533.) Want of funds. On the first day in December of
each year such treasurer shall make an entry of all orders entitled to
payment which were not so presented for payment, and what orders
not of equal dignity have been paid instead, in whole or in part, and
what others are entitled to payment before such non-presented orders.
Persons holding such orders, who present them without receiving their
pay before said day, may have the treasurer annually to mark thereon
" Presented" the day of presentation, and not paid for want of funds.
§560. (598.) (534.) County orders negotiable. All county orders are nego-
tiable by delivery or indorsement, and the indorser liable according to
the terms of his indorsement, as in commercial paper, but no such trans-
fer can take place so as to prevent a treasurer from setting off any sum
that the payee may be due the county at the date of the order.
County orders are not legal tender: 63 Ga., 311. Negotiability : 4 C. L. J., 247, 390;
5/170.
§561. (599.) (535.) Treasurer shall not purchase orders at a discount.
Such treasurer is forbid to buy up any county orders or claims for less
than their full par value, either by himself or agents, directly or indi-
rectly, or by paying for them in property at an estimated value above
its true value.
Section construed, and cannot show in defense that the one from whom he pur-
chased had not a good title : 47 Ga., 522.
§562. (600.) (536.) Buying orders at discount. If any County Treasurer
shall thus buy up any county order or claim, or refuse to pay an order
when he has funds to pay the same, or illegally postpone one, he shall
be removed from office on complaint and proof being made to the Ordi-
nary, and is moreover guilty of a misdemeanor, and, upon conviction,
shall be fined not less than one hundred nor more than five hundred
dollars.
Indictment against a County Treasurer under this section : 47 Ga., 523.
PART L— TITLE VI.— CHAPTER VI.
135
Article 2. — County Surveyor..
[Sees. 601, 602 and 603 repealed by Constitution of 1868, Article V.,
section 14.]
§563. (604.) (540.) Treasurer failing to pay over money. When the Act of 1825,
County Treasurer at any time fails to pay any order which is entitled c - p - 212,
to payment, or other legal demand upon him, or to pay any balance
that may be in his hands to his successor, or to the person entitled to
receive it, the Ordinary may issue execution against him and his
sureties for the amount due, as against a defaulting tax collector.
Ten days 1 notice required by the Act of 1825 before execution can issue : 9 Ga., JL8f>-
188. Mandamus against the County Treasurer and when no order from the Inferior
Court was necessary : 9 Ga., 367-371. Certiorari is not the proper remedy where such
execution was improperly issued : 29 Ga., 155. County Treasurer should not refuse to
pay a certificate because there were outstanding claims to the title thereof : 9 Ga., 334-
337. Execution against a defaulting tax collector's estate: 60 Ga., 298. Section cited
and commented on: 64 Ga., 679.
§564. (605.) (541.) Boohs must be turned over to successor. In case of the
resignation, expiration of the term, or removal from office, such treas-
urer, or if he is dead, his personal representative must state his ac-
counts, and deliver all the money, books, papers and property of the
county to his successor, as other officers do, who must report the same im-
mediately to the Ordinary.
§565. (606.) (542.) Final settlement. When such County Treasurer, or
his representative, has made a fair and full statement of all his accounts
and liabilities as such, an exoneration of himself and sureties together
with the details of such settlement, must be entered on the minutes
of the Court of Ordinary, and be final, except for fraud.
Where the tax collector pays money to the County Treasurer by mistake, and can
recover it back : 3 Ga.., 90. Defense by the County Treasurer to a claim against the
county, order having been given by the Inferior Court to pay the creditor, such treas-
urer cannot go behind the order: 8Ga., 560. Election of the treasurer of Muscogee
county, who is an officer of that county; 33 Ga., 332. On the Act of 1868 as to the
payment of orders : 39 Ga., 56. The County Treasurer, and not the Ordinary, is now by
law the treasurer of the board of education : 45 Ga., 498.
General Note on Article I. — Liability as to county funds: 20 Am. R., 637; lost
by robbery: 31 Am. R., 284; by failure of bank : 33Am.R, 114. Interest on moneys:
.21 Am. R., 197. Negligence of : Whart. Neg., £290.
ARTICLE II.
COUNTY SURVEYOR-
Section.
566. How elected and removed from office.
567. Failing to elect at the regular term.
568. Appointed by the Court.
569. His oath and bond.
570. May be removed from office.
571. One for each county.
572. Assistant must take an oath.
573. May keep his office at his residence.
Section.
574. General duty of county surveyor.
575. Fees for surveys, how paid.
576. Survey made between counties.
577. Charges for surveys, how contested.
578. surveys and plats, when evidence.
579. When there is no county surveyor.
580. Others acting as county surveyors.
581. Making false survey., how punished.
§566. (607.) (543.) How elected. County surveyors are elected, commis-
sioned, qualified and removed as Clerks of the Superior Courts are, and
hold their offices for two years.
§567. (608.) (544.) Failure to elect. In case tjiere is a failure to elect
a person who is commissioned and qualified at the regular time, or a va-
cancy occurs, the Ordinary must appoint such surveyors, until the va-
cancy is filled according to law.
§568. (609.) (545. ) When appointed by the Court. If a county sur-
veyor derives his authority from appointment, he needs no commission
beyond the order of such Ordinary entered on his minutes, of which
appointment the Governor of the State must be informed without de-
lav.
136 PART I.— TITLE VI.— CHAPTER VI.
Article 2.— County Surveyor.
§569. (610.) (546.) Oath and bond. Before entering on the duties
Act of 1847, of his office, besides the oath required of all civil officers, he must
c,p ; 2i7, take the following:
"I, , swear that I will, to the best of my skill and knowledge,
discharge the duties of surveyor of county, and that I will not
admeasure, survey, or lay out any land in my capacity as such, or
knowingly permit or cause it to be done, without a warrant first ob-
tained for that purpose. So help me God."
He shall also, at the same time, give bond and security in the sum
of one thousand dollars.
. , . §570. (611.) (547.) May be removed. Whether appointed or elected,
besides the causes of removal which apply to all officers, he. may be
removed by the Ordinary for want of capacity, on the same proceed-
ing before him, and by him to be decided, that officers are removed in
the Superior Court.
Act of 1783 §571- (612.) (548.) One for each count]/. There must be one for each
c. p. 665 ; ' county, and he is empowered to appoint one or more assistants or dep-
c c p°670 784 ' tities, for whose conduct he is responsible.
§572. (613.) (549.) Must take an oath. When such an assistant is ap-
pointed he must take the same oath the surveyor takes, and the fact
of the appointment must, at the same time, be entered on the minutes
of the Ordinary.
§573. (614.) (550.) Office where kept. The county surveyor may
keep his office at his place of abode, if within the limits of the county.
§574. (615.) (551.) Duties. It is his duty—
c°p °s7> 785 ' 1- T° punctually observe and carry into effect all such orders as he
Act of 1838, may receive from the Surveyor-General, or other officer who may law-
c. p. 2io, f u ily command him.
ifll 7 4ooo ^' ^° ^measure and lay off dower, to partition lands, to make re-
4045.' surveys, to give plats of all surveys, and to administer all oaths re-
quired by law in such cases.
3. To survey county lines and district lines, or other surveys, in which
his county may be interested, whenever required by the Ordinary.
4. To execute all surveys required by the rule of any Court of com-
petent jurisdiction.
Rule of survey taken out pending ?h action of ejectment should be limited to the
purpose for which it was intended : 28 Ga., 465.
5. To keep a well-bound book in which shall be entered plats of all
surveys made by him, with a minute of the names of the chain-bearers,
when executed, by whose order and to whom plat delivered, if any ;
which book shall belong to his office and be turned over to his succes-
sor, and when full shall be deposited in the office of the Ordinary.
§575. (616.) (552. ) Fees. When surveys are made for private or corpor-
ate benefit, the fees are to be paid by the person, or persons, or corporation
who orders the survey; when by order of the Ordinary, out of the
county funds; and when by rule of Court, unless otherwise agreed
upon, they are to be taxed in the bill of costs, and shall have the effect
of a judgment lien upon the land surveyed, if not paid by the party
bound for costs.
§576. (617.) (553.) Survey between counties. When a survey is made by
Act of 1785, agreement, or in compliance with the law, between two or more coun-
c. p. o39. ^ eg ^ ^ e coun £ v surveyor who performs the survey is to be paid by his
county, which must collect from the other counties their proportion.
§577. (618.) (554.) Payment of fees. If after a county surveyor has
made a survey for any person, who neglects to pay him, such surveyor
upon making oath before the Ordinary of his county of the performance
of such service and its value, such Ordinary shall issue a fi. fa. in the
name of the Ordinary, for the use of such surveyor, against such de-
PART L— TITLE VI.— CHAPTER VI.
137
Article 3. — Coroners.
faU
faulter, who may defend himself therefor, in the same manner as per-
sons against whom executions issue who detain county funds.
§578. (619.) (555.) Surveys, when evidence. Surveys or plats of land
made by the county surveyor, under order of Court, and on notice to
all the parties of lands within his county, signed by him officially, and
stating the contents, courses, distances, of any lancl surveyed by him,
are presumptive evidence of the facts, if all the requisites of the law
touching such surveys and the reports thereof are complied with.
Survey by the county surveyor alone is evidence : 58 Ga., 315.
§579. (620.) (556.) Where there is no surveyor. When there is no
county surveyor, any competent person, a citizen of the county, may
perform his duties, when specially required, if first sworn to do the
same skillfully, faithfully and impartially, to the best of his knowl-
edge ; or in default of such person, the county surveyor of an adjoining
county may officiate.
§580. (621.) (557.) Persons acting. Persons .performing such service
are on the same footing as county surveyors as to the special service
rendered, and are personally liable as such surveyors are officially.
§581. (622.) (558.) False survey. When any county surveyor, or
other person acting as such, has knowingly surveyed land as vacant
land which is not, or so made any other false survey, he is guilty of a
misdemeanor, and on indictment and conviction shall be imprisoned
not longer than six months.
General Note. — This certificate when not evidence to prove possession : 21 Ga.,
113. — Also see rules of Superior Court, 55 to 59, inclusive.
See 11 Am. D.,664; 4 Cr., 421; 5/234; 3 Pet., 320; 4 Wh., 594; 7/23, 248, and notes
on Ejectment and Boundaries.
fa.-*/*Vi
ARTICLE III.
CORONERS. $£^^2^1*^ ^@en**><^*~y93< ^
Section. /
590. May disinter dead bodies.
591. Subject to indictment.
592. Inquest unnecessary in certain cases.
593. Death by accident, etc.
594. Costs paid out of county funds, etc.
595. On conviction, costs a part thereof.,
596. Justice of the Peace may act, etc. '
Section.
582. How elected and removed from office.
583. Ordinary may appoint.
584. Coroner's oath.
585. Must give bond and surety.
586. Additional surety may be required.
587. Jailer, when Sheriff is imprisoned.
588. Shall serve process in certain cases.
589. Shall hold inquests in certain cases.
§582. (623.) (559.) Hoiv elected. Coroners are elected, commissioned,
qualified and removed as Clerks of the Superior Courts are, and hold
their offices for two years.
§583. (624.) (560.) Ordinaries may appoint. The Ordinaries appoint
coroners on the same terms and in the same manner that they do
county surveyors, which appointments take effect as those of County
Treasurers.
§584. (625.) (561.) Oaths. Before entering on the duties of his office,
besides the oath required of all civil officers, he must take the following :
!"I swear that I will well and truly serve the State of Georgia in said
office, and faithfully and truly execute all writs* and precepts to me
directed, or which I may lawfully execute, when placed in my charge,
and return the same according to the best of my knowledge, skill and
[judgment ; that I will in no case knowingly use or exercise my office
jillegally, corruptly or unjustly, and that I will not, under any pretense,
take, accept or enjoy any fee or reward pertaining to my office, other
than such as are allowed by law, but that I will, in all things touch-
ling the duties of my office, demean myself honestly, fairly, and im-
partially j according to the best of my ability. So help me God."
138 PART L— TITLE VI— CHAPTER VI.
Article 3. — Coroners.
§585. (626.) (562.) Bond. He must likewise, at the same time, give
c Ct °539 823 ' ^ on( ^ anc ^ sure ty in the sum of five hundred dollars, which may be for a
greater or. less amount, according to the local law now or hereafter in
force. He is liable for retaining moneys collected, or otherwise failing
to do his duty, as Sheriffs are, and is subject to the same proceedings.
On the Acts of 1823 and 1809 (C, p. 200): 12 Ga., 41.
§586. (627.) (563.) Additional bond. When a coroner has to act in the
place of a Sheriff, generalty or specially, the Ordinary may require of
him an additional bond, in such sum and with such sureties as in his
discretion he may think sufficient to meet the contingency.
§587. (628.) (564.) When keeper of jails. He is keeper of the jail when
the Sheriff is imprisoned or absent from the county, leaving no deputy.
§588. (629.) (565.) Shall serve process. When a Sheriff is disqualified,
§33344, 3960. and it does not appear upon the face of the proceedings, or he or his
deputy, refuses to perform a service, if any person makes affidavit
thereof, the Clerk of the Court from which it issues shall place the
process in the hands of the coroner for execution, and may compel its
return to his office for such purpose.
§589. (630.) (566.) Inquests. It is the duty of the coroner to take
inquests :
Act of 1823, 1. Of all violent, sudden or casual deaths.
c. p. 537. 2. Of all deaths in prison, without an attending physician.
|§4ioi,4iio. 3. Of all dead bodies found, whether of persons known or unknown.
4. Of all dead bodies of persons who have died or disappeared under
suspicious circumstances.
Has na vested right to hold inquest and charge the county therefor, unless the law
so requires: 50 Ga., 581.
5. Of the dead bodies of persons of whom affidavit may be made, that
they came to their death by violence or foul play.
6. Whenever ordered by a Court having criminal jurisdiction.
§590. (631.) (567.) Disintering dead bodies. They are authorized, in
order to carry into effect the preceding section, to disinter any body
already buried, and, like a Sheriff, to command the power of the county
for that purpose.
§591. (632.) (568.) Persons subject to indictment. If any person makes
affidavit to facts to authorize such proceeding by the coroner, or the
coroner does so of his own motion, and it is done without good grounds,
or from malice or mischief, the person so swearing, or the coroner so offici-
ating, is subject to indictment, and, if convicted, shall be fined not less
than one hundred dollars and imprisoned not less than thirty days.
In such cases all the circumstances shall go to the jury, and if they
believe there were reasonable grounds for disinterment at the time it
took place, it is their duty to acquit.
§592. (633.) (569.) When inquest unnecessary. When persons have
come to their death by violence, and there are witnesses to it, and the
person accused is under arrest and undergoes an examination before aj
competent tribunal, there need not be an inquest.
Section cited : 50 Ga., 582.
§593. (634.) (570.) Death by accident. There also need be no inquest
where persons come to their death by accident or act of God, in pres-ij
ence of witnesses, and there is no reason to suspect foul play, and nc
person makes affidavit of facts raising such suspicions.
Section cited : 50 Ga., 582. ;
§594. (635.) (571.) Costs. The costs of such inquests shall be paicji
out of the county funds.
PART I.— TITLE VI.— CHAPTER VII.
139
Article 1.— Public roads.
§595. (636.) (572.) Costs, ivhen the party is convicted. If any person is
convicted of murder or manslaughter, in a case where an inquest has
been held over the body of the person for slaying whom he is convicted,
the costs of the inquest make a part of the costs of conviction, and
must be so charged.
§596. (637.) (573.) Justice of the Peace may act. When there is no
coroner in a county, or he is absent from the county when needed, or
will not or cannot take an inquest, any Justice of the Peace of the
county may act as coroner.
On Coroners : see Lee's Handbook for Coroners, and Crocker on Sheriffs, 403-411.
CHAPTER VII.
ROADS, BRIDGES, FERRIES, TURNPIKES, CAUSEWAYS, CROSSINGS, ETC.
Article 1.— Public Roads. ^2^^^^-^
Article 2. — Road Commissioners and their duties.
'^CH^^^^^i
T^S.y,
Article 3. — Bridges, Ferries, TurnmJces and Causeways. /f^—iS. /<
Article 4. — Railroad Crossings
Article 5. — Private Ways.
Article 6. — Mining.
-^
ARTICLE I.
npJJces and (
PUBLIC ROADS.
Section.
597. What roads are considered public.
598. Shall be thirty feet wide, etc.
599. May be classified.
600. Width of second class.
601. Bridges and causeways, 16 feet wide.
602. Districts.laid out, etc.
603. Roads and districts to be registered.
604. How laid out or altered.
605. Notice of application advertised, etc.
606. Holders of land, how notified.
607. Roads established, etc.
608. Application must be in writing.
609. Laid out the nearest and best way.
610. Persons subject to road duty.
611. What roads to be worked.
612. Number of days required to work.
613. List of hands to be furnished.
614. Must be summoned one day.
615. What the notice must contain.
616. Duty of the overseer.
616. (a.) Extraordinary work.
616. (b.) By what means to be done.
616. (c.) Selection of roads by grand jury.
616. (d.) Culverts and bridges.
617. Sudden obstructions in roads.
618. Special working to be deducted.
619. Defaulters fined one to three dollars.
620. Extraordinary implements.
621. Road may be apportioned.
622. Persons to whom road apportioned.
Section.
623. Applicant refusing to accept.
624. Failing to work after acceptance.
625. Complaint against commissioners.
626. Defaulters may file excuse.
627. Executions against defaulters.
628. Fine money, how appropriated. .
629. Constables collecting, etc.
630. Liens of fi. fa.
631. Timbers used for road purposes.
632. Public roads measured and posted.
633. Sign-boards to be put up at forks.
634. Failure to put up posts, etc.
635. Overseer may be indicted.
636. Railroad hands, how exempted.
637. Land owners aggrieved, etc.
638. Persons claiming damages, etc.
639. Trial, how conducted.
640. Notice to Justices, etc.
641. The time and place of meeting.
642. Objections to jurors.
643. Continuances, etc.
644. Mistrial.
645. Certiorari.
646. Final judgment and payment,
647. Value of the land, how estimated.
648. Consequential damages.
649. Overseer may be fined.
650. Altering or obstructing public roads.
651. By a fence or tree.
652. Main streets in towns or cities.
§597. (638.) (574.) Public roads. All roads laid out for public use by
an Act of the General Assembly, if not otherwise provided, or by an
order of the Ordinary, are declared to be public roads.
"When a neighborhood road is not a public road : 61 Ga., 156 ; 55/310. *
§598. (639.) (575.) Sixe, extent, foot-fogs, etc. Public roads shall be Act of 1799,
cleared of all trees, stumps, grubs, and bushes, at least thirty feet wide, c - p - m
and of such limbs of trees as may incommode horsemen, or carriages;
140 PART I.— TITLE VI.— CHAPTER VII.
Article 1. — Public roads.
Acts of 1877, stumps must be cut as nearly even with the surface as possible, and
p - 1L the carriage track must be at least five feet six inches wide. And at all
Act of isoo, places on said public roads, where water may pond or flow, during any
Act ofms seasori > or f° r any considerable period in each year, so as to prevent the
c. p. 949. ' dry and convenient passage of pedestrians, it shall be the duty of the
road hands to place foot-logs or other convenient pass-ways; the same
to be so constructed as to be at all times above high water mark at
such place or places.
§599. Roads may be classified. [It shall be lawful for the several Ordi-
(ar Acts of naries of this State, with the concurrence of a majority of the road
' commissioners of their respective counties, to designate such public
roads in their respective counties, as in their discretion should be so
^ designated as second class roads.] (a.)
«/<?£ c~J£* L -^*^* §600. Width of second class roads. [All roads so designated, as second
jf^alf^ Acts of class roads, shall be cleared of all stumps, trees, grubs and bushes, at
'18/0. p. 397. ]_ eag £ twenty feet, and of such limbs of trees as may inconvenience
/jT''^^' horsemen or carriages; the stumps to be cut as nearly even with the
surface as possible, and the carriage track must be at least five feet and
six inches wide, and said roads shall be changed, worked and managed
according to the road laws of this State, as far as the same may be ap-
plicable.] (b.)
§601. (640.) (576.) Bridges and causeways. All bridges or causeways over
Act of 1818, small water courses, and causeways over swamps or low lands, shall be
c. p. 949. ma d e and kept in repair by hands subject to work on roads ; the pieces
shall be laid across the road at least sixteen feet long, well secured,
made fast, and covered with earth.
§602. (641.) (577.) Road districts and apportionment of hands. The Ordi-
\ Act of Has, naries must lay off their respective counties into road districts, and
* A ^^ c - p- 946 " apportion the roads and hands so as to divide the labor and expenses
^ on account of roads, causeways and bridges, equally throughout said
counties ; all of which proceedings must be entered on the minutes.
§603. (642.) (578.) Public roads and road districts to be registered. They
must keep registered, in a book in their office, a list of all public roads
and road districts in the county, to be added to and corrected from time
\j $ , ( " to time, as new roads or new districts are laid out, or old ones altered
or discontinued.
§604. (643.) (579.) Public roads, how laid out or altered. On applica-
Act of 1818, tion to them for any new road, or alteration in an old road, they shall
c. p. 947. appoint three road commissioners, residing as near where such road is
intended to pass as possible, and if they find it of public utility they
must proceed to mark it out, and make their report under oath to such
Ordinaries that it was laid out and marked conformably to law.
What is an order for the alteration of a road, and where an injunction was refused :
22 Ga., 369. Certiorari is the remedy in road cases : 22 Ga., 369. To open a road which
has ceased to be public, and remove fences, are trespasses : 22 Ga., 369. Indispensable
that'the commissioners take the oath : 30 Ga., 723. Construes, and it is discretionary
with the county authorities, where they follow the law: 54 Ga., 187-9. The only legal
alteration of a road must be by order of the Court or permanent user : 48 Ga., 568-9.
§605. (644.) (580.) Notice .of application. If such Ordinaries, on the
investigation had, are willing to grant such road, or make alteration in
an old road, they shall publish a citation for thirty days at the door of
the Court House, and in a public gazette, if there is one in the county,
giving a particular description of the new road, or the alteration noti-
fying all persons that on an after a certain day therein named, said new
roa£ or alteration will be finally granted, if no new cause is shown to
the contrary.
Certiorari is the remedy to correct any errors, and if new road applied for or any
alteration therein, there should be a citation for thirty days published : 54 Ga., 189.
PART I.— TITLE VI.— CHAPTER VII.
141
Article 1. — Public roads.
§606. (645.) (581.) Persons in possession to be notified. All persons,
their overseers or agents, residing on land which such road goes through,
except the applicants for the road or alteration, must be at the same
time notified in writing, personally, or by leaving it at their most no-
torious place of abode, that they may put in their claim for damages,
or be forever after estopped.
Section cited : 48 Ga., 566-9.
§607. (646.) (582.) Void roads. All public roads established without
a substantial compliance with the provisions of the last named sections,
are void.
§608. (647.) (583.) Discontinuance of roads. Applications for the dis-
continuance of an old road, in whole or in part, must likewise be made
to such Ordinaries, in writing, and likewise published, before it shall
take effect.
When a citation to alter a road may involve the discontinuance thereof : 54 Ga., 189.
§609. (648.) (584.) Public roads must be laid out the nearest and best way.
All public roads shall be laid out the nearest and best way to the place to
which they are intended, and as little as can be to the prejudice of any
private person's inclosed grounds.
§610. (649.) (585.) Persons subject to road duty, and who exempt. All male
inhabitants, white and black, in this State, between the ages of sixteen
Act of 1818,
C. p. 951.
Act of 1818,
C p. 947.
Acts of 1865
and fifty years, shall be subject to work on the public roads, except -6,pp. 23,78.
- - J - J J -, Acts of 1870,
p. 399.
Acts of 1871
-2, p. 19.
Acts of 1876,
p. 20.
§§659, 1069.
ordained ministers of the gospel, who are in the regular discharge of
ministerial duty, and in charge of one or more churches, and all men
who have lost one arm or one leg. It shall be the duty of the Superin-
tendent of the Lunatic Asylum, Asylum for the Deaf and Dumb, and
the Academy for the Blind, to furnish under oath, to the Ordi-
nary or the commissioners of roads and revenues, where such officers ex-
ist, and where these institutions are located, a list of guards, watch-
men, cooks, nurses and attendants employed on the first day of April
of each year, and all such employees shall be exempt from road duty.
The lessees of the penitentiary convicts are required to furnish to the
officers in charge of the roads in each county of the State where they
are employed, a list, under oath, of all guards employed, and said
guards or convicts shall be exempt by paying one dollar per day for
each day of road working for which they are summoned and said roads
are worked.
§611. (650.) (586.) When hands are compelled to work. The same road
hands shall not be compelled to work on more than one public road,
which must come within three miles of their residence, [or be the
nearest public road to their residence,] except in opening a new road,
when all the road hands of the road district are subject to work upon it.
§612. (651.) 1 587.) Length of time to work. Road hands are not required
to work exceeding five days at one time consecutively, or more than
fifteen days altogether, in twelve months, unless sudden emergencies
require the immediate repairing of the roads, causeways and bridges
within their respective districts.
§613. (652.) (588.) List of hands. The several managers and em-
ployers of male [persons of color] (b) shall, whenever required, furnish
the overseers of the road district with a list (in writing) of those who
are liable to work on the public roads, signed by them, under a pen-
alty of paying three dollars for each male [person of color] (b) so liable
to road duty, and whose names are not furnished, to be collected as fines
for not working the roads.
§614. (653.) (589.) Road hands, how summoned. Overseers of roads in
their respective districts shall summon all persons liable to road duty,
within the district, at least one day before the time of working.
H-\ -. ip j
Acts of 1878
-9. p. 48,
Act of 1818,
C. p. 947.
(b) Acts of
1865-6, p. 23,
Acts of 1876,
p. 19.
142 PART I.— TITLE VI.— CHAPTER VII.
Article 1. — Public roads.
§615. (654.) (590.) What the notice must contain. Such summons must
state the road to be worked, the time and place for meeting, and the
implements required.
§616. (655.) (591.) Overseer, his duty. Such overseers shall superin-
Acts of 1876, tend the working on the roads assigned them by the commissioners,
p- 19 - cause the same to be worked and repaired in the best possible manner,
and make a return thereof to the commissioners, in writing, within
five days after each time of working, and report all hands who may be
in default, upon their several roads, without receiving therefor any
part of the fines which may be collected from said defaulters ; and,
upon failure to report any defaulter or defaulters, (and upon convic-
tion thereof before the commissioners,) shall be fined five dollars for
each defaulter he so fails to return.
§616. (a.) Extraordinary work. The county commissioners of roads
<■ Acts of 1880 and revenues, Ordinaries, or County Judges of the several counties in
4 ~i ? p. 139. ^ g gt a ^ e? having charge of the roads and revenues of each of said
counties (as the case may be), are hereby authorized and required to
/ provide for the grading of the public roads of their respective counties
where said roads are too steep, too rough or too boggy for practical use,
or the hauling of ordinary loads ; and said officials are also authorized
and required to provide for any other extraordinary work on the public
roads of their respective counties which cannot be done by the road
hands subject to road duty under the laws of this State.
§616. (b.) By what means to be done. Said officials may have said work
Acts ofisso enumerated in the preceding section done by use of the county chain-
-l, p. 139. g an g ? by contract let to the lowest and best bidder, or otherwise as may
be to best interest of their respective counties ; and said officials shall
be authorized to pay for said work out of any funds of their said coun-
ties not otherwise appropriated.
§616. (c.) Selection of roads by grand jury. The grand juries of the
Acts of 1880 respective counties are authorized to select such roads or sections of
-l, p. 139. roac [g if in their judgment any such roads exist in their respective
counties, as cannot be made passable by the hands accessable thereto,
and shall recommend to the Ordinaries, or boards of roads and reve-
nues, or County Judges (as the case may be) existing in their respec-
tive counties, to have said road put in proper order as provided in the
two preceding sections, and they shall also recommend the manner in
which said work may be done or contract let out.
§616. (d.) Culverts and bridges. The provisions of the three preceding
Acts of 1880 sections shall also apply to such culverts and short bridges, not less
s~ / y 1 '^-^' than ten feet in length, as the grand juries may recommend as provi-
r#-
Wm*l**>/<?*~ f
ded in the preceding section.
^ - / £</->/; §617. (656.) (592.) Roads, etc., suddenly becoming impassible. When any
r*^ % '• road, or bridge, or causeway, may become suddenly .impassible, it is
the duty of such overseer to call out as many hands as necessary to
repair the same, after giving one day's notice.
§618. (657.) (593.) Special work deducted. They shall take notice of
the time such hands are employed on such special workings, and shall
excuse them from road duty an equal number of days out of the whole
number all hands are required to work during the year.
§619. (658.) (594.) Defaulters may be fined. Every individual liable
(a) Acts of to road duty, who, being duly summoned to work, shall neglect to obey
1865-6. p. 23. sucn summons, and to carry the implements as ordered, or, appearing
with or without the implements, neglects or refuses faithfully to work,
[shall be fined] (a) not less than one nor more than three dollars for
every day he or they fail to work, [or be imprisoned, at the discretion
of the commissioners.] (a.)
L
PART L— TITLE VI.— CHAPTER VII. 143
Article 1.— Public roads.
Section cited : City of Dalton's mayor and council may assess fine for neglect to work
streets, the same as road commissioners could do: 53 Ga., 426-8. Does not apply to a
party under section 621 of the Code, but must be proceeded against under section 661
of the Code 4 : 56 Ga., 689.
• §620. (659.) (595.) Extraordinary tools, how obtained. If any other in- < & * • ■ m • ■ gf* ^ T •
strument than ordinary farming tools are necessary to keep the road /^?- A r2>~&* '-
in repair, the overseer may receive them in exchange for the labor of ^"^
hands, or may apply to the Ordinary, who may authorize him to con-
tract for such as may be necessary, and pay for the same out of the
county treasury.
§621. (660.) (596.) Public roads maybe apportioned. When a person Act of 1826,
liable to road duty makes an application to the road commissioners for^ p - 954 - .
a proportion of the road for himself and hands to work on and keep \\&<Z<^<-4«^?{U-~*£^ y
repair, they shall parcel off to each applicant some equal and just^^-v'-^v'r
portion of said road, to be increased or diminished according to the
number of hands, and to be judged of by the commissioners.
Becomes quasi road commissioner, and liable to same penalties and punished for
neglect of duty in the same way as road commissioners : 56 Ga., 689.
§622. (661.) (597.) Duty of persons to whom apportioned. Persons to
whom portions of roads are thus apportioned must make annual re-
turns to their respective commissioners, whenever they require them,
of the number and names of their hands liable to road work, and after
they have received and put in good repair their respective portions,
such hands shall not be transferred to any other part of the road, or
compelled to do any other road work, so long as they perform their
work satisfactorily to the commissioners.
§623. (662.) (598.) Persons refusing to accept apportionment. If the appli-
cants do not accept the portion of road assigned to them by the com- #
missioners, they must still work in common with the other hands of
their road districts.
§624. (663.) (599.) Penalty for failure to work. If, after having accepted
such portions, they neglect to keep them in good repair, they are liable
to all the penalties and forfeitures to which commissioners are liable
for neglect of duty, besides the usual road fines on the hands.
Commissioners' Court has no jurisdiction of such a case : 56 Ga., 689.
§625. (664.) (600.) Complaint against commissioners. If such commis-
sioners assign any person a portion of road thus to work, which, taking
into consideration his number of hands as compared to the number
liable to do road duty on such road, is not an equal share of the labor,
any white male road worker of the same road and district may com-
plain to the Ordinary at any time, and on giving such person three
days' notice thereof in writing, such Ordinary may summarily hear all
the evidence, and if they believe the complaint is just, they shall
revoke such grant by the commissioners, and so have them instantly
informed.
§626. (665.) (601.) Defaulters m,ay file excuse. All defaulters must file §658.
their excuses, if any, on oath, before the commissioners, who must meet
at some place within the district for fining defaulters, of which place
of meeting they shall give ten days' notice in writing at one or more
of the most public places in the district, and no other notice shall be
necessary.
§627. (666.) (602.) Executions against defaulters. Such commissioners Act of 1839.
must issue executions under their hands and seals [or their warrants of c - p - 957<
arrest, as the case may be,] (a) against each defaulter who fails to ren-(a) Act of
der a good excuse, directed to any lawful constable, who shall levy and 1865_6,p '^
collect the same as executions issued from the Justices Courts [or, as
the case may be, arrest the defaulter and bring him before the commis-
sioners to abide the judgment of the same.] (a.)
144 PART I.— TITLE VI— CHAPTER VII.
Article 1.— -Public roads.
§628. (667.) (603.) Fines, how disposed of. When such fi. fas. or war-
Act of 1839, rants are collected within ten days thereafter, the amounts must be paid
c. p. 95/. ^ o an y Qne Q £ t k e commissioners.*
§629. (668.) (604.) Constables may be ruled. If constables neglect their
Act of 1818, duty in collecting such^. fas., or fail to pay over the money, [or fail
c. p. 948. ^ ma k e S nch arrests and bring the parties arrested before the commis-
(a> Acts of sioners, they shall be subject to rule and suit at the instance of such
' p * commissioners, as though the fi. fas. or warrants had issued from a Jus-
tice's Court. In all cases where executions may be issued against road
hands in the employment of others notice to the employers of the exis-
tence of such execution shall have the force and effect of a garnishment,
and shall operate as a lien on what is due or to become due from such
employer to such employee, and may be collected as in cases of garnish-
ment, (a.)
§630. (669.) (605.) Lien of commissioner y s judgment. The lien of such
judgments are the same as any other judgment, and claim according to
their priority in the distribution of money, except that no property is
exempt therefrom, and if illegalities or claims are interposed, they
must be returned as though issued from a Justice's Court in which the
road district is situated, in whole or in part.
§631. (670.) (606.) Timbers may be used. Overseers are authorized to
Act of 1818» make use of any timbers for the use of the roads, and may make con-
c. p. 949. tracts with owners of land for such other timber, if indispensable,
and if they disagree as to the value, the overseer shall appoint one
arbitrator and the owner another, who, without further formality, shall
assess the value, and if they disagree, to call in an umpire, whose de-
cision is final. The valuation so awarded must then be reduced
* to writing and signed by the arbitrators, and upon the production of
the same, with a certificate of the overseer that he used the timber as-
sessed, must be allowed by the Ordinary and paid out of the county
treasury.
§632. (671.) (607.) Road to be measured. They shall measure all that
Act of 1818, part of the road to which they may be appointed, beginning at the
c. p. 951. Court House, and at the end of each mile set up a post or mark on some
conspicuous place, which shall designate the number of miles from
thence to said Court House; and the overseer in the next adjoining
district shall likewise begin to measure and mark at the last mile post
in the district thus measured; but when such district shall end at some
county line, he shall, by some post or mark, designate the distance
from such county line to their respective Court Houses.
§633. (672.) (608.) Signboards. They shall, at the fork of each public
F c et °y? 18> roa d> pl ace > ln some substantial and conspicuous manner, a board or
r » . • other m ark, designating thereon the most public place to which each
? road directs ; and if any road is altered so as to make the fork at some
other place, or as not to make necessary such sign-boards, they shall be
removed and replaced, or either, if necessary.
§634. (673.) (609.) Overseers failing to put up posts and boards. If any
overseer fails to comply with the provisions of the two immediately pre-
ceding sections, he forfeits not exceeding fifty dollars, to be imposed
and collected as other fines against him.
§635. (674.) (610.) Overseers in. default If any overseer omits to do
his duty with respect to the roads, bridges and causeways under his
charge for as much as thirty days from the time the necessity for any
immediate work occurs, unless hindered by extremely bad weather or
other providential cause, he shall be indicted for a misdemeanor, and,
on conviction, shall be fined or imprisoned, at the discretion of the
*Part of this section changed by Act of 1876, p. 19.
PART I.— TITLE VI.— CHAPTER VII. 145
Article 1. — Public roads.
Court, and is also liable for all damages at the suit of any person injured
by such omission.
§636. (675.) (611.) Railroad hands exempt, when. Hands liable to road Act of is v.,
work employed as laborers on the line of any railroad in this State A cts of 1851
belonging to an incorporated company, or by any contractors con-^P- 28*
structing railroads, are exempt from work on the public roads : Provided, p. 65.
the public road overseer having charge of them, respectively, is paid^ < '^ oflMI0
[one dollar] (a.) per day for each hand so liable, which money shall be (a)Acts of
expended in hiring hands to work on the roads. §659 ' p '
§637. (676.) (612.) Land owners aggrieved, how redressed. When any
person shall feel aggrieved by any road proposed to be laid out through
any of his land, unless otherwise provided in the charter thereof, or
some special law, he may petition in writing the Ordinary who shall Act of 1799,
issue a warrant under his hand, directed to the Sheriff of the county, .J-Jjj ^{o bl
to summon from the vicinage a jury of freeholders to try such question -2, p. 2x0.
of damage, who shall be sworn by some Justice of the Peace to truly
and impartially assess any damage the owner will sustain by means of
such new or altered road, and said Justice shall preside over their
deliberations.
It is indispensable that the assessors of damages be sworn : 30 Ga,, 723. When com-
pensation for damages is to be given, where there was no evidence that the road had
existed for seven years : 36 Ga., 393.
Condemnation of land for: 22 Am. D., 692.
§638. (677.) (613.) Jurors incompetent, when. No person is competent
as a juror who claims any damage of the county or person for the same
or any similar road, or who would be disqualified if the trial was before
the Superior Court.
§639. (678.) (614.) Trial, how conducted. The jury shall inspect the
road and land in person, unless already familiar with them, and swear
any witnesses that the owner or any person on the part of the county
may offer, as to their opinion of the damages sustained.
§640. (679.) (615.) Notice of trial. The Sheriff shall notify the Jus-
tice of the Peace and the road commissioners of the district where the
road lies, and the owner of the land, the day and place of trial, and shall
notify to attend then and there, as witnesses, any persons he may be
requested to by such commissioners, or the owner.
§641. (680.) (616. ) Time and place of trial. He shall fix the time and
place, the time not less than five nor more than twenty days, and the
place as near the land as the proper house-room can be obtained.
§642. (681.) (617.) Objections to jurors. At' the trial any person in
interest may object to the impaneling of any juror for cause, and if
from this or any other cause there are not twelve jurors impaneled
and sworn, the Sheriff must proceed to procure tales jurors.
§643. (682.) "(618.) Trial may be postponed. The trial may be post-
poned or continued from day to day until completed, and if the Jus-
tice of the Peace summoned to attend should fail to preside, the Sheriff
must supply the vacancy, if necessary, from some other district.
§644. (683.) (619.) Mistrial. If a mistrial occurs the Sheriff shall
proceed de novo to summon other jurors, and all the proceedings shall
be as at first, and so on until there is a verdict.
Such proceedings legal : 32 Ga., 414.
§645. (684.) (620.) Certiorari. The judgment in such cases may be ?4gm.
certioraried by the county or the owner of the land, as in certiorari from
forcible entry and detainer trials, and if a new trial is ordered, they
shall proceed to procure a trial as previously.
Certiorari is the remedy for errors in road cases: 22 Ga., 369. Construing: 57 Ga.
495; 54/189.
10
146 PART I.— TITLE VI.— CHAPTER VII.
Article 1.— Public roads.
§646. (685.) (621.) Order for damages. When such judgment be-
comes final, all the papers appertaining thereto must be filed in the
office of the Ordinary, who must grant an order for the damages as-
sessed in favor of the land owner, but if such Ordinary is satisfied
that such damages transcend the utility of such road, or that part of it,
they may revoke the road altogether, or order the same altered so as to
avoid the land so damaged, or make the owner an offer of such com-
pensation as they may think just.
§647. (686.) (622.) Value of land, how estimated. In estimating the
value of land when taken for public uses it is not restricted to its agri- .
cultural or productive qualities, but inquiry may be made as to all other
legitimate purposes to which the property could be appropriated.
§648. (687.) (623.) Consequential damages. Prospective and conse-
quential damages resulting therefrom may be also taken into consid-
eration, if the same are plain and appreciable, and on the other hand
the increase of the value of the land from the proposed public improve-
ment may be considered, but in no case shall the owner be deprived of
the actual damages by such estimated increase.
Case of land taken for a bridge, the prospective and consequential damages for the
same, where they are plain : 17 Ga.,30.
§649. ( 688. ) ( 624. ) Overseer neglecting duty, etc. If any overseer, within
Act of 1818, twelve months after his appointment neglects faithfully to discharge
the duties required of him, he is subject to a fine not exceeding fifty
dollars by the commissioners under whom he serves, who shall notify
him of his neglect, and unless a good excuse is rendered to them within
twenty days from the time of such notice they shall issue execution
for the fine assessed.
§650. (689.) (625.) Altering or obstructing public road, penalty. If any
Acts of 1859, person shall alter any public road or cut any ditch across, or alter the
p ' ' location of any bridge, or make any new bridge necessary by his act,
without first obtaining an order therefor, he is guilty of a misdemeanor,
and, on conviction thereof, shall be fined not less than twenty-five nor
more than one thousand dollars, and shall be liable besides, by suit, for
all damages any person may sustain thereby.
To maintain an action for an injury received from an obstruction, two things must
concur — an obstruction in the road by the fault of the defendant and no want of ordi-
nary care to avoid it on the part of the plaintiff : 17 Ga., 136.
§651. (690.) (626.) Obstructions not removed, fine, etc. When any per-
Act of 1818, son shall make any fence or cut any tree, or make other like obstruc-
Ac£ of 9 i85S*i ons i n or a< ^ross any public road, which is not removed in two days
-4, p. 98. and-a safe and a convenient way, at the time of the obstructions, made
for travelers, he shall pay a fine of twenty dollars for each obstruction,
to be recovered by execution issued by the commissioners, as in cases
of road fines, and shall be liable for any damages caused by the ob-
struction, from the first to the last, if the person injured used ordinary
caution.-
§652. (691.) (627.) Streets neglected for three months, Justices to act, etc.
yet of 1833, And when the main streeets of an incorporated town or city continue
J ' p ' (Jo4, in a state of neglect, for three months, the Justices of the Peace therein
are, by virtue of their office, road commissioners, and shall appoint
overseers, apportion the hands that would be liable to road duty
throughout the town, have the streets worked on, as though they were
public roads, and must, in every other respect, perform the duties of
road commissioners, and for neglect of any other duty, or violation of
any of the road laws, are liable to fine as such commissioners.
General Note. — How the State may construct roads: 6 Ga., 130. Where injunction
granted against the opening of a public road over the unenclosed land of a citizen: 9
Ga., 341-358. Discontinuance of an old road: 20 Ga., 126. Jurisdiction over roads
PART I.— TITLE VI.— CHAPTER VII.
147
Article 2.— Commissioners of Public Roads.
vested formerly in the Inferior Court: 22 Ga., 369. Use of a road by the public for
thirty years authorizes the presumption of a grant to the public : 26 Ga., 665. Private
road: 26 Ga., 665. The public has only a restricted prescriptive right to a road wbere
passage has been permitted by the owner, he keeping gates at both ends of the road :
iO Ga.. 896. There being no'evidence that the road in controversy existed for seven
years, it is not to be declared a public road without providing compensation to the land
owners for damages sustained: 36 Ga., 393. When it is no breach of warranty that
there exists a public road on the land purchased : 56 Ga., 515.
General Note on Public Roads. — What constitutes: 1 Am. D., 647; Angell on
Highways, 3. Boundary of land by: 8 Am. D., 263, 266, n; 10/650; 23 Am. P., 229,
233, n; 28/75; 2 Sm. L. C., 216. Cemetery, highway through: 21 Am. P., 647, n;
32/417. County, when liable for defect in, or non-repair: 11 Am. P., 66, n; 25/730;
28/352, 657 ; Whart. Neg., $960. Dedication of, what does not constitute : 10 Am. D.,
350. Evidence of: 3 Am. P., 23; see note to $2684; 23 Am. D., 662; Angell Highways,
[32; 5 C. L. J., 233; 7/37, 58, 238; 8/504-5; 9/298; Add. Torts, 300-308. Excavations
aear, liability for injuries : 23 Am. P., 175, n, 183. Fence against cattle not rightfully
bn, not required: 8 Am. D., 121; 17/444; 20/678; Thomp. Law of Farm, $395, et seq.
injunction against interference with: High Inj., $575. Law of the road, driving,
[jtc. : 1 Thomp. Neg., 365; Whart. Neg., $820; Angell Highways, 410. Passing: 13
Am. P., 133, and note, 135. Right side: 20 Am. R., 315, and note, 317. Legislative
control over: 26 Am. D., 631. Negligence : Shear. & R. Neg., 413. Contributory
liegligence of one injured on highway: 23 Am. D., 669; 2 Thomp. Neg., 1197. Non-
jiser, effect of: 18 Am. D.., 86. To forfeit, what is sufficient: 1 Am. D., 647; see also
W Am. R., 295. Nuisance in : 8 Am. R., 62, n; 15/398; 22/528 ; Angell on Highways,
254 ; Add. Torts, 297 ; Wood on Nuisance, 226. Obstructing- highways, endangering
ravel on: 1 Thomp. Neg., 326: Whart. Neg., $815; 1 Am. 1)., 647; 3/39; 25 Am. R.,
>31, and n, 533; Add. Torts. 234, 270; Wood on Nuisance, 226. Frightening horses:
Wh&rt. Neg., $835. Things falling on and injuring travelers: Whart. Neg., $839.
lights of owner of soil through which highway runs: 3 Am. D., 439; 4/159; 6/216;
J/263; 23/202; 8 Am. R, 363; Angell Highways. 366; R. M. CharL, 342; Add. Torts,
f84; Wood on Nuisance, 226. Runaway horses, injury by: 16 Am. R., 384, n.
Survey of, must define boundaries: 18 Am. D., 86. Travelers only can recover for
lefect in : 24 Am. P., 25, n. Usage may establish, when ;' 17 Am. D., 428. — Generally :
Angell on Highways; 2 Sm. L. G, 199, 202, 214; Thomp. Law of Farm, $$395-406.
2^
A + * j/** " C
y ARTICLE LL x
COMMISSIONERS OF PUBLICVROADS. i/£z*>+»~~ ^
Section.
653. Three for each district.
654. How appointed.
655. Compelled to serve unless excused.
656. Must be notified within ten days.
657. Exempt from patrol and militia duty.
658. Duty of commissioners generally.
659. Persons exempt from road duty.
Section.
660. Pay of overseers.
661. Proceedings against for neglect.
662.
663.
664.
665.
666.
Failing to appear when cited. <££,*-*
Executions against Commissioners.
A public road being a district line.
Necessary books shall be furnished
Certificate of discharge.
*~4y ecu Z^L^-c^a?
J653. (692.) (628.) Three commissioners for each district, tivo may act. Act /i i8i;
[here shall be three commissioners for each road' district, any two of C J?' Jt
yhom may act, and in case there is only one in a district, that one is
nvested with all the powers of the three until the vacancies are filled.
§654. (693.) (629.) How appointed. Such commissioners are appointed
r re-appointed by the Ordinary biennially, and, whenever necessary,
jo fill vacancies at any time.
§655. (694.) (630.) Compelled to serve. Those thus appointed are com- Act of lsis,
lelled to serve, unless excused by such Ordinary, who shall receive for ' p ' 94 ''
Such excuse providential cause only : Provided, that those who have Actsofi878,
Served two years consecutively shall have the right to resign a third p - 67,
jppointment if made immediately after two years' consecutive service.
j §656. (695.) (631. Notified in writing. As soon as appointed, they
pall be notified thereof in writing within ten days thereafter by the
j)rdinaiy, and if such appointees do not, within ten days after receiving
uch notice, file their excuse in writing, under oath, in such Ordinary's
Iffice, they shall be considered as having accepted.
j [Sec. (696.) (632.) Repealed by Constitution of 1868, Article V., sec-
ion 14.]
Sly/ft ~A A /^
148 PART I.— TITLE VI.— CHAPTER VII.
Article 2. — Commissioners of Public Roads.
§657. (697.) (633.) Exemptions of commissioners. Such commissioners,
while in office, are exempt from all jury, patrol, militia, and other road
duty.
• §658. (698.) (634.) Duties. It is their duty-
Act of 1818, 1. To appoint, within fifteen days, one or more persons in their res-
948 PP ' 947 ' pective districts as overseers of the road.
2. To apportion the roads and hands under their charge at the same
time as equally and fairly as possible, and to furnish the several over-
seers with a list of the roads and hands under their respective charge.
3. To hear and determine upon all cases of default or other violation
of the road laws within their jurisdiction (if not indictable only) at a
Court to be held by them twenty days after every road working, or
as often as emergencies may require, and to issue executions or other
process against the convicted.
4. To expend, as in their judgment will best serve the public good,
Acts of 1876, all moneys coming into their hands from defaulting road hands, and
p. 19. from fines imposed upon and collected from overseers : Provided, that
such moneys are to be applied to improvement respectively of the roads
whereon such defaulters may have been required to serve.
5. To cause to be served upon road defaulters three days' notice in
Acts of 1880 writing, of the time and place of the meeting of such commissioners
-l, p. 146. £ or faQ trial of defaulters. Such notice to be served by the overseer of
roads or the constables of their respective militia districts upon such
defaulters personally, or by leaving the same at their most notorious
place of abode.
6. To keep a book in which to enter —
First. The several hands in their respective districts subject to road
duty ; to what roads and what parts thereof assigned, and under what
overseer ; changing and correcting it from time to time, as may be ne-
cessary.
Second. A list of all defaulters and persons fined, the amounts fined,
amounts paid, what disposition made of the money, what executions
issued and unpaid.
7. To pay to the County Treasurer, as soon as collected, that portion
of the fine-money belonging to the county, to be used in the repairing
or building of public bridges and causeways ; and annually, on the first
of December, to report to the Ordinary the condition of the public roads
and bridges in their respective districts, the state of the finances, what
executions are outstanding and unpaid, and their condition.
8. To inspect from time to time the public roads, bridges and ferries
within their districts, notice the character of the repairs, and observe
if such road is regularly posted and direction boards put up as required
by law, and if said bridges and ferries are in proper repair.
9. To exercise a general supervision over their respective overseers,
and to fine them for neglect of duty, and to see that persons are indicted
for the offenses set forth in the road laws.
10. To administer all oaths relative to the road laws, connected with
their duties.
§659. (699.) (635.) Exemptions. In making up the list of road workers,
Acts of 1876, they must not include the following description of persons, who are
p " 80 ' exempt from such duty, viz : Ordained ministers of the gospel who are
lorq ' 636 ' * n ^ ne regular discharge of ministerial duty, and in charge of one
or more churches, teachers and students of colleges and schools, keepers
of public grist-mills, public ferrymen, keepers of toll bridges, turnpikes
causeways and plank roads, engineers, and white persons in charge oi
cars or trains running on railroads, officers of the United States, this
State, or any county thereof, and all others exempted by any special
law.*
-Is not this section repealed by section 610 ?
PART I.— TITLE VI.— CHAPTER VII. 149
Article 2.— Commissioners of Public Roads.
§660. (700.) (636.) Repealed by Act of 1876, p. 19.
§661. (701.) (638.) Proceedings against Commissioners for neglect of duty, (a) Acts of
[Whenever the grand jury in any county in this State shall present 1866 ' p- 18,
any road commissioners for neglect of duty generally, or in any par- *
ticular, it shall thereupon be the duty of the clerk of the Court to issue
a summons in writing, directed to such commissioners, commanding
them to be and appear at the next term of the Superior Court in which
the presentment is made, to answer the accusation of the grand jury,
which said summons shall be served by the Sheriff upon the commis-
sioners at least twenty days before the Court to which the same is re-
turnable ; and if, upon the investigation of the case, it shall appear
that the accusation is made out by the proof, the Judge sfeyi^thereupon ,
impose upon such commissioners a fine not less than nfiy dollars nor/^ /L -^~'^'^
more than two hundred dollars, (a.)
Proceeding under this section not technically a criminal proceeding, but one
against a public agent for neglect of duty, and the presentment need not be the form
required for a violation of the criminal law : 40 Ga., 680. In such cases road commis-
sioners are not entitled to demand jury trial : 40 Ga., 680. It is error to compel defend-
ant to answer questions, the answer to which may subject to a fine, forfeiture or pen-
alty : 40 Ga., 688. Under section 621 of the Code he is a quasi commissioner and liable
according to the terms of this section : 56 Ga., 690.
§662. (702.)- (640.) Failure to appear. If they have been duly cited
and served and fail to appear, the Court may proceed ex parte.
§663. (703.) (641.) Clerk shall issue execution. The clerk of the Court
is directed to issue executions against them for the fine and costs,
Iwhich shall be executed by the Sheriff. The lien of such executions,
and the property subject thereto, are the same as those against default-
ing road workers.
§664. (704.) (642.) A public road being a district line. When any pub- Act of isi8.
lie road may be on a road district line, and the Ordinary has not speci- * p "
ally assigned it to any particular district or set of commissioners, the
commissioners of each district shall co-operate in arranging the hands
and appointing the overseers for such road.
§665. (705.) (643.) Books, who furnishes. The books such commis-
sioners are required to keep must be furnished by the Ordinary, at the
expense of the county, and out of the road money, if any, and when
full must be deposited in his office.
^666. (706.) (644.) Commissioners, by whom discharged. After the
commissioner has faithfully served through the term of his appoint-
ment he may obtain from the Ordinary a certificate of such fact.
General Note. — A plank road cannot appropriate the whole of a highway without
express authority in their charter: 9 Ga., 475.
General Note. — Commissioners individually liable for costs, when : Dudley, 192.
150
PART I.— TITLE VI.— CHAPTER VII.
Article 3.— Bridges, ferries, turnpikes and causeways.
ARTICLE III.
BRIDGES, FERRIES, TURNPIKES AND CAUSEWAYS.
/ /rs^te^TsECT]
ZSd. a** fa
^A^
Section.
Public ferries, bridges, etc.
Regulations concerning the same.
Erected for the benefit of the county.
Power and duty of the Ordinary.
Condition of contractor's bond.
Bond must be approved.
Additional bond may be required.
668.
'669.
(J 670.
v 671.
672.
673.
/674. Roads, bridges, etc
C_pjM-*"B75
Contractor failing.
676. Defendant resisting payment.
677. Contractors incompetent as jurors.
678. Bridges, etc., crossing county lines.
679. County refusing to contribute.
680. _ Toll bridges crossing county lines.
681. Private bridges, etc.
682. Distance in such cases.
683. Rates of toll to be posted up.
684. Land-owner may erect a bridge, etc.
685. Excessive rates shall not be charged.
Section.
686. Rates to be examined annually.
687. Persons making excessive charges.
688. Fords, bridges, etc.
689. Public bridges, etc.
690. Proprietors liable for neglect.
691. County, when liable for damages.
692. Persons detained at public crossings.
693. No toll after expiration of charter.
694. Owner of private ferry, etc., liable.
695. Remedy against delinquent bridge owner.
696. Citation — service — jury.
697. Issue — oath of jury — continuance.
698. Verdict and its effects.
699. Proceedings at any time, fees.
700. Breaking toll gate, etc.
701. Right of way.
702. Grant of land, what passes.
703. Grant for a ferry.
704. Value of land taken, how.
§667. (707.) (645.) Public bridges, ferries, causeivays, etc. All bridges or
Act of 1805, ferries, turnpikes or causeways, erected or permitted by any Act of the
c. p. 954. GJ- enera i Assembly, if not otherwise provided, or by order of the Ordina-
- * ries, for public purposes, are declared to be public.
When a county liable for a bad bridge although it is in a town : 54 Ga., 79 ; 55/609.
§668. (708.) (646.) Bridges, ferries, etc. They are divided —
1. Those established by the county which are free to every one.
2. Those established by the county where toll is charged generally
or specially.
3. Those established by individuals under the authority of law or by
virtue of a prescriptive right.
4. Those established by individuals without, such rights, who accom-
modate the public or any portion of them for compensation.
§669. (709.) (647.) Ordinary may establish for benefit of county. The Or-
dinary may put a ferry or causeway, or both, or may establish a toll
bridge for the benefit of the county ; but when on any such county bridge,
ferry or causeway, toll is charged, the county is liable as individuals
owning them, and the owners of lands must be compensated as in other
cases.
Act of 1805,
Act 'of 1818, wa 1/ s
C. p. 952.
Section cited and construed : 54 Ga., 25.
§670. (710.) (648.) Power of Ordinaries over public bridges, ferries, cause-
etc. The Ordinaries of the several counties have authority —
Section cited and construed: 54 Ga., 25.
1. To appoint the places for the erection of public bridges, county fer-
ries, turnpikes and causeways, and to make suitable provision for their
erection and repairs by letting them out to the lowest bidder, hiring
hands, or in any other way that may be for the public good and agreea-
ble to law.
Section cited; certiorari: 64 Ga., 70-1. Section cited and construed: 52 Ga., 540.
Power of taxation for public bridges seems to have no limit except the cost of erecting
the bridge : 34 Ga., 370. Damages for the neglect of the Ordinary to -repair a bridge do
not lie except where the bridge is a toll bridge or built by contract: 41 Ga., 225-8.
When no exclusive right could be granted: 48 Ga., 367.
2. To require sufficient bond and good security for the faithful per-
formance of all such works and contracts, and to indemnify for all dam-
ages occasioned by a failure so to do.
In suit against the county under this section the declaration should allege that the
bridge was erected by letting it out to the lowest bidder and no bond taken from the
contractor : 54 Ga., 25.
PART L— TITLE VI.— CHAPTER VII. 151
, ! • — --
Article 3.— Bridges, ferries, turnpikes and causeways.
3. To license any person to establish such bridge, ferry, turnpike, or
causeway, not exceeding ten years, which may be renewed at the expi-
ration thereof.
4. To fix the rates of toll for crossing any such where the toll can
lawfully be charged, and regulate those previously established, or that
may afterwards be established, so as to conform to what is both reas-
onable and usage on such water courses, provided such charges are not
specialty regulated by the General Assembly in some Act of incorpo-
ration to the exclusion of such Ordinaries.
5. To exercise a general supervision over such, and see that they are
kept in proper order and properly attended to, and to require, from time
to time, as the occasion may demand, sufficient bond and good security
from the proprietors thereof, conditioned for their keeping in repair a
sufficient and safe bridge, flat rope, turnpike or causeway, and all other
appointments necessary for a good ferry and competent and faithful
attendance by day and night, and to indemnify the public against all
damages by reason of a failure so to do.
As to the obligation by law on the owners of toll bridges : 52 Ga., 540.
§671. (711.) (649.) Condition of the bond of contractors. When a public
bridge, ferry, turnpike or causeway, is let out, the contractor must, in Xfy? «/V,
his bond, make a condition also to keep it in good repair for at leasv '
seven years, and as many more years as the contract may be for.
Section cited and construed: 54 Ga., 25-7. Section construed; county liable for in-
jury even after the seven years if there has been a failure to take the requisite bond of
the contractor : 59 Ga., 832-5. If the county undertakes itself to keep a county bridge
in repair it is liable in damages for failure so to do : 64 Ga., 69-71. When a county was
held not liable according to the averments made in the declaration in the suit: 41 Ga.,
225-8.
§672. (712.) (650.) Bond must be approved. All bonds taken from con-
tractors or proprietors must be approved by the Ordinary, filed in his
office and by him recorded in books kept for that purpose.
§673. (713.) (651.) Additional bond maybe required. If when an addi-
tional bond is required, it is not given within ten days from the time
the proprietor, or his agent, is notified by the Ordinary, the license
must be revoked.
§674. (714.) (652.) Roads, bridges, etc., to be kept in repair. When any
such work shall require repairing, it is the duty of any one or more
road commissioners in whose road district the same is, to give notice
in writing to the contractor, or one of his sureties, stating the repairs
necessary to be made, and requiring them to be done within a reason-
able time, stating the time.
§675. (715.) (653.) Repairs, by whom to be made. If such repairs are
not made within the time required, they shall employ some other per-
son forthwith to make them, and upon report to the Ordinary of their
cost, he shall issue an execution against such contractor and his sure-
ties for the expense of such repairs and the costs.
§676. (716.) (654.) If defendant resists payment of such executions, how
tried. If the defendant resists the payment of said execution at law,
it must be returned for trial by jury, if demanded, either to the Jus-
tice's Court of the district where the defendant resides upon whose
property the levy is made, or to the Superior Court of the county, ac-
cording to the principal amount thereof.
§677. (717.) (655.) Contractors cannot be road commissioners. Persons Act of isis,
who have undertaken the building or keeping in repair any bridge, u - p - m
ferry, turnpike or causeway, or are surety for such persons, cannot be
road commissioners of the road district which embraces such, and if,
after having been appointed, they become such contractor or surety, the
152 PART I.— TITLE VI— CHAPTER VII.
Article 3.— Bridges, ferries, turnpikes and causeways.
Ordinary must declare a vacancy and appoint some other persons in
their stead.
§678. (718.) (656.) Bridges, etc., crossing county lines, how kept up. When
Act of 1818, a bridge or ferry is necessary over any water course which divides one
" 1 " ' county or more counties from each other, each county must contribute
j equally toward the building and keeping the same in repair, or in such
proportion as would be just, taking into consideration the taxable prop-
erty of each, and the amount expended by each in construction of
bridges and other passways.
§679. (719.) (657.) The remedy when one county refuses to contribute. If
■Act of i824„any county refuses to undergo its fair proportion of such expenses, the
c. p. 9o3. other county or counties ma}' construct the work, compel the other to
' contribute by suit, and until such contribution takes place, may have
exclusive control thereof, and charge toll thereon against all the citizens
of the refusing county.
</)/? JL §680. (720.) (658.) Toll bridges, etc., crossing county lines, how licensed.
Wti ** — £*~**~* The toll bridges or ferries over water courses making county lines, may
f--£~J /f>&/J/-A be licensed by either county, and in such cases the bonds must be ap-
-^r*^y / proved, filed and recorded in the county where the license is granted.
§681. (721.) (659.) No private ferry shall be established, when. No private
ferry charging toll shall be established on any water course within three
miles of where public bridges are previously erected and kept up, but
bridges may be erected at the public expense at places on the same
stream, other than those where bridges are previously erected, if not
violative of any special provision of the law.
This section does not prohibit the establishment of private ferry within three miles
of a public one ; injunction refused : 47 Ga., 282.
§682. (722.) (660.) Distance, how computed. When exclusive right
is granted to any person to prevent others from erecting bridges or fer-
ries, or the like, within a given distance from the same, it shall be
computed by the course of the stream.
Distance is to be computed by the stream's course : 9 Ga., 213-215.
CaMLes< / &**^ <*~f §683. (723.) (661.) Rates of toll to be posted up. Every proprietor of
^^£^ Actof 1808, bridges, ferries, turnpikes and causeways, where toll is allowed to be
^■^-^^^^A^of 1859 charged, must fix a board in a conspicuous place, as near the same as
/fr2~-3JJ4 : ? 6 ^- 'practicable, with black ground , on which shall be the various rates of
'_* ' toll ; and if such is neglected, he shall be subject to indictment, and,
on conviction, shall be fined not less than fifty dollars for every week
he so neglects.
§684. (724:) (662.) Land owner may construct bridges, etc., on his own
Act of 1850, land. Any person who may be the owner of any land through which
. p. <b8. a S £ ream mav pass, on both sides thereof, may establish any bridge or
22233. ferry thereon, at his expense, and may charge lawful toll for crossing,
according to the rates of other bridges and ferries on the same stream,
or if none other, the customary rates over such streams elsewhere.
Construed in connection with section 2207, and applies to private ferries only: 47
Ga.,282.
§685. (725.) (663.) Excessive rates shall not be demanded. If such per-
son shall demand excessive rates, any person may complain to the
Ordinary of the county, and if the rates are excessive, they must re-
duce and fix them.
§686. (726.) (664.) Rates to be examined annually. The Ordinary of
each county must once each year examine the rates charged in their
counties, and keep fixed the rates of toll for the several bridges, fer-
ries, turnpikes and causewaj^s within the limits of their county, which
have the right to charge them, and must enter the same on their
minutes.
/tfj'
PART I.— TITLE VI.— CHAPTER VII.
153
Article 3.— Bridges, ferries, turnpikes and causeways.
§687. (727.) (665.) Persons making excessive charges, how punished. If Actsofi859,
any person shall charge more than the lawful rates, or more than in- p " '
cheated by the board, he is guilty of a misdemeanor, and on conviction
must be fined in the discretion of the Court, and for the second offense,
in addition to the fine, he forfeits his franchise.
§688. (728.) (666.) Fords, bridges, etc., not to be obstructed. No person
authorized to have a bridge or ferry on his own land will be permitted
to stop up or obstruct any ford, bridge or ferry, and upon so doing he is
guilty of a misdemeanor, and on conviction must be fined or imprison-
ed, or both, in the discretion of the Court.
§689. (729.) (667.) Bridges, etc., not to be discontinued. After a person
has once established such bridge or ferry, he shall not discontinue the
same without first giving public notice thereof by advertisement post-
ed on the Court House door and in a public gazette, if there is one pub-
lished in the county, for at least sixty days.
§690. (730.) (668.) Proprietors liable for neglect. Any proprietor of any Act of 1805,
bridge, ferry, turnpike or causeway, whether by charter or prescription, ' p ' '
or without, or whether by right of owning the lands on the stream, are
bound to prompt and faithful attention to all their duties as such ; and
if any damage shall occur by reason of non-attendance, neglect, careless-
ness or bad conduct, he is bound for all damages, even if over and be-
yond the amount of an}^ bond that may be given.
. Where the county was held liable for damages, a certiorari: 64 Ga., 69-71. When the
proprietor of a toll bridge is not liable for damages while repairing the bridge : 52 Ga.,
540. Where the jury alone should settle the doubts as to the negligence of the propri-
etor of a toll bridge: 63 Ga., 489-490. Damages against a county for defective con-
struction of abridge: 59 Ga., 832. As to the degree of care the owner of a bridge
franchise should exercise, and when he alone is liable: 53 Ga., 47. Proprietor of a
toll bridge only responsible for ordinary care and diligence, and beyond this is not an
insurer : 64 Ga., 312.
§691. (731.) (669.) On failure to take bond the county is liable. The pro-
visions of the preceding section apply to all contractors for the estab-
lishment of such, when damages accrue from a want of good faith in
performing their several contracts, and if no bond or sufficient guaran-
tee has been taken by the Ordinary, the county is also liable for the
damages.
Construing this section : 59 Ga., 832-5. Where the county was held not liable under
the allegations of the declaration in the suit : 41 Ga., 225-228. County liable where it
attempts to keep the bridge in repair: 64 Ga., 69-71. Section construed — failure to
take bond, and as to how the county should be served : 54 Ga., 25-27.
§692. (732.) (670.) Persons shall not be detained at public crossings. Any
person unreasonably detained at a public ferry, toll bridge, turnpike or
causeway, may for each detention recover of the owner ten dollars be-
fore any Justice of the county.
§693. (733.) (671.) Persons charging toll after charter expires. If any
person demands or receives toll for crossing any ferry, bridge, or cause-
way, or turnpike, after the revocation of his license or forfeiture of his
charter, or, having a right for a ferry, allows the banks on either side
to be out of repair more than five days at one time, or to provide good
and safe boats of a size sufficient for the accommodation of the public,
furnished with competent and sufficient ferrymen for the safe and
speedy passage of all persons, vehicles, horses and stock, or, in case of
a toll bridge or causeway, fails to keep the same in good repair, with-
out a reasonable excuse for such failures, to be determined by the Court,
he is guilty of a misdemeanor, and, on conviction, must be fined not
less than twenty dollars.
§694. (734.) (672.) Private ferries. If any person who keeps a private
bridge, ferry, turnpike or causeway, passes any person for toll, the
owners incur the same liability and penalties as those permitted by
law.
154 PART L— TITLE VI.— CHAPTER VII.
Article 3. — Bridges, ferries, turnpikes and causeways.
§695. Remedy against delinquent bridge owners. [If any owner of any
(a> Acts of chartered toll bridge or turnpike road in this State, the charter of
18/2, p. 83. which wag granted hj any of the Courts of this State, or by the Legis-
lature of this State, shall fail or refuse to keep the same in good repair,
and in terms of the provisions of its charter, it shall be the right and
privilege of any person to file with the Ordinary of the county in which
such charter was granted, a petition (in writing) setting forth the par-
ties and the facts, and praying for the remedy hereinafter set
forth.] (a.)
§696. Citation, service and jury. [On the filing of said petition with
0» Acts of the Ordinary, he shall issue a citation, directed to the Sheriff of said
1872, p, 38. county, his deputy, or any lawful constable, requiring the defendant to
appear before him at the Court House of said county, on a day therein
named, to defend said suit. A copy of said petition and citation shall
be served upon the defendant, either in person or by leaving the same
^ at his most notorious place of abode, or, if he be without the county,
4 then upon the gate-keeper, at least fifteen days before the time for trial.
/ And said Ordinary shall also cause a jury of twelve men to be sum-
moned to try the issue in such case], (b.)
§697. Issue, oath of jury, continuance. [When said cause is called and
(c) Acts of set down for trial, it shall be the duty of the Ordinary to cause an issue
1V72, pp.38, f f ac tg to be made upon the pleadings and tried before said jury. The
jurors shall take the general oath prescribed for jurors in common law
actions in the Superior Courts of this State : Provided, that either party
shall have the same rights of continuance as in other cases at common
law, and, in case of continuance, the Ordinary shall fix the time of
hearing the same], (c.)
§698. Verdict, and its effects. [On the return of the verdict of the jury,
(d) Acts of if the issue be found in favor of the defendant, judgment shall be entered.
1872, p. 39. against the plaintiff for costs of suit ; but if the issue be found against
the defendant, judgment shall be "entered against said defendant for
costs of suit, and also suspending his right to collect further tolls on
said bridge or road until after the next term of the Superior Court of
* said county, after which it shall not be lawful for any tolls to be col-
lected on any such bridge or road during the operation of said judg-
* ment : Provided, however, that the owner or any person interested in such
t toll bridge or turnpike road may afterwards put the same in good
repair, and on making the same clearly appear to the Ordinary, said
Ordinary may enter an order vacating said judgment, so far as the same
operates as a suspension of the right to collect tolls], (d.)
§699. Proceedings may be at any time, fees. [All the proceedings set
(e) Acts of forth in the four preceding sections may be had in term time or during
1872, p. 39. vacation ; and the fees of the Ordinarv for the whole service shall be five
dollars, the jurors one dollar each for every day engaged, and the Sher-
iff's or constable's fees — the usual fees for like services.] (e.)
§700. (735.) (673.) Injuries, avoiding payment. If any person break or
injure any gate to atoll bridge, turnpike or causeway, or obstruct, injure
or destroy such bridge or causeway, pass round or under the same with
intent to avoid the : payment of toll, such person forfeits to the owner
ten dollars for each of such acts, and is also liable for the damages.
§701. (736.) (674.) Right of way. Damages for the right of way are
to be assessed in the manner prescribed for public roads and private ways.
§702. (737.) (675.) Grants to land. Grants to land on water courses,
g2362. with the appurtenances, convey no right of public bridge or ferry.
Right to establish a public ferry by a private individual, must be by grant actual or
implied : 6 Ga., 130. Seven years of uninterrupted possession of a ferry right implies
a grant: 7 Ga., 348. Grant of land, etc., from the State on a water course conveys no
right to a public ferry : 9 Ga., 359.
PART I.— TITLE VI.— CHAPTER VII.
155
Article 4. — Railroad and other crossings.
§703. (738.) (676.) Grant for ferry. The grant of a ferry franchise §2862.
conveys no right to build a bridge, or the contrary.
Grants strictly construed and no grant of exclusive ferry franchise by implication :
9 Ga., 517. Stated and construed: 14 Ga., 1. Section cited and construed where in a
grant of power to a city as to streets, it did not give power to establish or work a ferry :
53 Ga., 639. As to a bridge and ferry franchise proving not exclusive: 56 Ga., 73.
§704. (739.) 677. Value of land, how estimated. In determining the §648
value of land taken for a bridge, its prospective value as a bridge site
and its present value as a ferry, if one is in use, may be taken into the
calculation.
General Note. — Damages not recoverable against a city for delay in erecting a
bridge: 57 Ga., 114. Right of the State to erect bridges: 6 Ga., 130. When implied
trusts as to ferry rights are created: 7Ga., 348. Power by contract not conferred on
the commissioners of roads and revenues of Chatham county to repair bridges across a
canal : 14 Ga., 391. No grant of public ferry rights by implication : 9 Ga., 359. Build-
ers of a bridge on the lands of another, knowingly, have no lien against the owner of
such lands thereby: 19 Ga., 427. Parol contract for building bridges is within the
power of the Justices of the Inferior Court : 20 Ga., 328. On the Act of 1806 authoriz-
ing a toll bridge across the Great Ogechee at a particular place to the exclusion of any
other for five miles above or below it: 25 Ga., 445-453. How damages are to be esti-
mated in an action for mesne profits for a ferry landing, what must be proven : 20 Ga.,
523. What is a ferry defined : 20 Ga., 529. A tax levied for a turnpike fund and sub-
quently ratified by the Legislature, is valid : 34 Ga., 370. As to a grant of an exclusive
right to build* and establish a bridge was not in the power of the Inferior Court of Floyd
county: 48 Ga., 367. A declaration in an action against a county for the falling of a
bridge must aver that the claim had been presented to the Ordinary for auditing within
twelve months from the injury suffered: Maddox vs. County of Randolph, Pamph. of
Feb. 1880, p. 37.
General Note on Bridges. — Condemnation of land for : 22 Am. D., 692. County?
when liable for defects, etc., in: 2 Bk., 590; 32 Am. R., 561; 33/249; 1 Thomp. Neg.,
575; Shear. & R. Neg., 294. Franchise : 1 Wash. Real Pr., 20; 2/268; 271-3. Injunc-
tion against interference with: High. Inj., $580. Mechanic's lien does not attach
to: 32 Am. R., 136. Bridges, turnpikes and other public works owned by private cor-
porations, doctrines of negligence respecting: 1 Thomp. Neg., 541; Shear. & R. Neg.,
294. Toll bridge, right to establish over stream crossing public highway : 14 Am. R.,
382; 11 0., 791. See, generally: Angell on Highways, 31, and note on Municipal Cor-
porations, as to bridges in towns and cities".
General Note on Ferries. — Defined: 12 Am. D.,295, n ; 13/701. Action for setting
up opposition : 9 Am. D., 712. Condemnation of land for: 22 Am. D., 692. Fran-
chise : 10 How., 511, 541; 16/524; 1 Bk., 603. Not terminated by death of grantee: 1
Am. R., 299. Forfeiture of: 2 Am. D., 706. Power of State to grant: 9 Am. D., 712.
Exclusive license to: 30 Am. R., 390. Remedy for injuries to: 12 Am. D., 295, n.
Injunctions against interference with: High. Inj., $587; 9 Am. D., 274. Legislative
control of ferry : 26 Am., R., 289, and note, 293. Negligence, liability of ferrymen :
Whart. Neg., $706; Schoul. B., 433; 11 Am. R., 650, 656, n; see also notes to $2066.
Contributory negligence of persons injured: 36 Am. R, 501. Presumption of grant
of ferry by thirty years' use : 26 Am. R., 289. Between two States : 11 Wall., 423 ; 1
Bk.,603; Rorer on Inter-State Law: 318-351. See, generally: Angell on Highways,
36, 527 ; 2 Washburn Real Pr., 68, 269-271.
General Note on Turnpikes. — Angell on Highways, 7. Travel on: 447. Injury
caused by fright of horse at defect in : 26 Am. R., 76.
General Note on Canals. — Angell on Highways, 38. Law of travel on : Angell on
Highways, 457 ; Shear. & R. Neg., 296. Condemnation of land for: 22 Am. D., 697.
ARTICLE IV.
RAILROAD AND OTHER CROSSINGS.
Section.
705. Railroads crossing each other.
706. Roads at railroad crossings.
707. Extent of such crossings.
708. Erecting posts and blowing whistle.
709. Neglecting to erect such posts.
710. Failing to blow the whistle.
711. Proof of damage, onus on the company.
712. Suits, when to be brought.
Section.
713. Failing to keep crossings in order.
714. Must be done by overseer of roads.
715. Executions against defaulting company.
716. Money raised, to Avhom paid.
717. Railroad company may defend.
718. Plank, macadamized and other roads.
719. Public highways, bridges, etc.
§705. Railroads may cross each other, on terms. [Any railroad company,
heretofore or hereafter chartered by the Legislature of this State, shall
156 PART I.— TITLE VL— CHAPTER VII.
Article 4.— Railroad and other crossings.
(a) Acts of have the right to cross any other railroad heretofore or hereafter built
1870, p. 428. or ^- kg "b-QjJt ill this State, upon the following terms: (1.) They shall
be allowed to cross at grade points, or at any other point where the same
shall not obstruct the other road, and may be allowed to cross by a tun-
nel or bridge, if necessary — said tunnel or bridge being made abso-
lutely secure.] (a.)
§706. (740.) (678.) Railroad crossings. All railroad companies shall
Act of 1838, keep in good order, at their expense, the public roads or private ways
'" p " " established pursuant to law, w r here crossed by their several roads, and
build suitable bridges and make proper excavations or embankments,
according to the spirit of the road laws.
§707. (741.) (679.) Extent of such crossings. Such crossings include
the width of land on both sides of the road allowed by charter or ap-
propriated by the company therefor, and for as many feet beyond, each
way, as is necessary for a traveler to get on and off the crossing safely
and conveniently.
§708. (742. ) (680.) A post to be erected. There must be fixed on the
Acts of 1851 line of said roads, and at the distance of four hundred yards from the
Acteof 1859 centre of each of such road crossings, and on each side thereof, a post,
p- 64. ' and the engineer shall be required, whenever he shall arrive at either
of said posts, to blow the whistle of the locomotive until it arrives at the
public road, and to simultaneously check and keep checking, the speed
thereof, so as to stop in time should any person or thing be crossing said
track on said road.
This provision as to blow-posts is indicative as to the legislative mind in regard to
the subject of diligence : 24 Ga., 75. Train to be checked, how : 24 Ga., 75. Failure of
train to comply with these requisitions : 24 Ga., 75. If not done liable, although no
actual collision : 42 Ga., 332. Means only public roads : 61 Ga., 455. Section cited and
construed, and public crossings here meant : 64 Ga. , 649.
§709. (743.) (681.) Neglecting to erect such posts. Should any company
Acts of i85i fail or neglect to put up said posts, the superintendent thereof shall be
Actsof°i859 S u ^y °f a misdemeanor, and, upon indictment and conviction thereof
p. 64. ' in the county where such failure occurs, shall be subject to a fine of
not less than five hundred dollars nor more than one thousand dollars.
§710. (744.) (682.) Failing to blow the whistle. If any engineer neglects
Acts of ib5i to blow said whistle, as required, and to check the speed, as required in
-2, p. 108. gec tion 708, he is guilty of a misdemeanor, and, on indictment and con-
viction in the county where such failure occurs, he shall be punished
by fine not exceeding five hundred dollars and imprisoned not ex-
ceeding ninety days, or either, which the company by whom he is em-
ployed is bound to pay : Provided, that within the corporate limits of
Acts of 1875 the cities, towns and villages of this State, the several railroad compa-
p. 17. ' nies shall not be required to blow the whistle of their locomotives, on
approaching crossings or public roads in said corporate limits, but in
lieu thereof, the engineer of said locomotive shall be required to signal
the approach of their trains to such crossings and public roads in said
corporate limits, by tolling the bell of said locomotive, and on failure
- to do so, the penalties of this section shall apply to such offense.
§711. (745.) (683.) Injuries. When such injury occurs, the onus is
upon the company to prove such fault on the part of the -injured persons.
§712. (746.) (684.) Suits, where brought. Such suits may be located in
§3406. the county where the injury occurs, and service perfected as in case of
killing stock.
In suit for damages for killing a person, under the Act of 1850 brought in the county
where the principal office was kept : 24 Ga., 356.
§713. (747.) (685.) Railroads over which crossings are required. When
any road over which a crossing is required shall be obstructed, or not
in good order at such crossing, a road commissioner, or an overseer of
PART L— TITLE VI.— CHAPTER VII.
157
Article 5.— Railroads and turnpikes, their regulation and management.
the road district where the crossing is, must notify the nearest agent Act of 1 838,
J - ■ ■• C. p. 9o6.
or employee of the company, in writing, to remo^
or to put such crossing in proper order withir^
date of such notice.
§714. (748.) (686.) Requisition, when to be complied with.
h obstructions, * » y
r;- delays from the/y^ /"
If such re-
quisition is not complied with, it must be done by the overseer of the
road, and within five days after he shall have discharged such duty, he
must report under oath, in writing, to the commissioner of the district,
the amount and value of the services performed.
§715. (749.) (687.) Execution shall issue. The commissioners shall then
issue execution, under their hands and seals, directed to any lawful
officer, for the amount of such value and the costs of the proceeding
against such defaulting railroad company, as in case of other road de-
faulters.
§716. (750.) (688.) Money raised, how disposed of . The amount, when
collected, must be paid to the persons who performed the labor, pro rata,
and according to the labor performed by each, and for other expenses of
said work, if an v.
§717. (751.) (689.) Defenses. The defendants may defend themselves
from such fi. fas. as other defaulting road-workers may.
§718. (752.) (690.) Plank and other roads subject to the same provisions.
The provisions of this article are, so far as applicable, extended do any
plank, macademized turnpike or other road belonging to private indi-
viduals or a joint stock company.
Case of a plank road : 9 Gra., 475. A bill filed for obstructing a highway: 15 Ga., 39.
§719. (753.) (691.) Public highways^ etc. Public highways, bridges or
ferries cannot be appropriated to railroads, plank roads, or any other
species of road, unless express authority is granted by some constitu-
tional provision of their charter.
General Note.— Bound to reasonable care and diligence in running over crossings :
18 Ga., 680. Collision happening at the crossing of a railroad and a public highway
where both parties are at fault, no recovery : 19 Ga., 440.
General Note on Railroad Crossings. — Rules respecting negligence of railroad at
crossings: 1 Am. R., 339; 10/729, and n, 732; 15/119; 20/698; 26/205, and n, 207.
Whart. Neg., §891 ; Shear. & R. Neg., 562; 1 Thomp. Neg,, 401; Thomp. Law of Farm,
§§78-90.
ARTICLE V. £jL*j^p JL*~^^> <?**- ^T **«*-* A
RAILROADS AND TURNPIKES, THEIR REGULATION
4.TION AND MA
MANAGEMENT.
/?++/«
Section,
7iy. (a.) Appointment, term, etc., Of com-
missioners.
719. (b.) Office of, where kept, clerk.
719. (c.) Extortion, forbidden.
719. (d.) Discrimination, forbidden.
719. (e.) Duty of commissioners.
719. (f.) Schedule of rates.
719. (g.) Jurisdiction of commissioners.
719. (h.) Power over contracts between rail-
roads.
719. (i.) Penalty for violating rules.
719. (j.) Suits for injuries.
719. (k.) Rules of evidence.
719. (1.) Terms defined.
719. (m.) Duplicate freight receipts.
719. (n.) Reyjoi'ts of commissioners.
719. (o. ) Attendance and pay of witnesses.
ailroad officers shall report. /
-0T.* ■ < •*.»*
cers shall report,
of freights to connecting
ectton
719. (p.) Railroad
719. (q.) Delivery
lines.
719. (r.) Railroad tracks, may be joined.
719. (s.) Discrimination forbidden.
719. (t.) Right to connect tracks, how enforced.
719. (u.) Exceptions and limitations.
719. (V.) Commissioners of turnpikes.
719. (w.) Number, and how elected.
719. (x.) Certificate of election.
719. (y.) Their term of office.
(2.) Duty of commissioners.
(aa.) Proceedings against
turnpike owners.
(bb.) Notice to toll gate keepers.
(cc. ) Pay of commissioners.
(dd.) Extent of jurisdiction.
v?
-,,s. /«rs
719.
719.
719.
719.
719.
defaulting
§719 (a.). Commissioners, appointment, term and salary. There shall be Acts of i8?o
three commissioners appointed by the Governor, with the advice and " ' p "
consent of the Senate, to carry out the provisions of this Article, of
whom one shall be of experience in the law, and one of experience in
railway business. After the expiration of the terms of office of the
158 PART L— TITLE VI— CHAPTER VII.
Article 5. — Railroads and turnpikes, their regulation and management.
commissioners first appointed, the term of office of successors shall be
six years : but, at the first appointment, one commissioner shall be ap-
pointed for two years, one for four years, and one for six years. The
salary of each commissioner shall be twenty-two hundred dollars, to be
paid from the treasury of the State. Any commissioner may be sus-
pended from office by order of the Governor, who shall report the fact
of such suspension, and the reason therefor, to the next General Assem-
bly, and if a majority of each branch of the General Assembly declare
that said commissioner shall be removed from office, his term of office
shall expire. The Governor shall have the same power to fill vacancies
in the office of commissioner as to fill other vacancies, and if, for any
reason, said commissioners are not appointed during the present session
of the General Assembly, the Governor shall appoint them thereafter,
and report to the next Senate, but the time until then shall not be counted
as part of the term of office of said commissioners, respectively, as herein
provided. Said commissioners shall take an oath of office, to be framed
by the Governor, and shall not, jointly or severally, or in any way, be
the holders of any railroad stock or bonds, or be the agent or employee
of any railroad company, or have any interest in any way in any rail-
road, and shall so continue during the term of office; and in case any
commissioner becomes disqualified in any way, he shall at once remove
the disqualification or resign, and on failure so to do, he must be sus-
pended from office by the Governor, and dealt with as hereinafter pro-
vided. In any case of suspension the Governor may fill the vacancy
until the suspended commsisioner is restored or removed.
§719. (b.) Location of office, clerk, expenses, etc. Said commissioners
Actsof 1878 shall be furnished with an office, necessary furniture, and stationary,
-9, p. 125. an( j mav employ a secretary or clerk at a salary of twelve hundred dol-
lars at the expense of the State. The office of said commissioners shall
be kept at Atlanta, and all sums of money authorized to be paid by
this Article out of the State treasury shall be paid only on the order of
the Governor. Provided, that the total sum to be expended by said com-
missioners for office rent, furniture and stationary shall, in no case, ex-
ceed the sum of five hundred dollars ($500.00), or so much thereof as
* ' -'' may be necessary, per annum.
§719. (c.) Extortion by railroads forbidden. If any railroad cor-
Acts of 1878 po ration, organized or doing business in this State, under any Act of
-9. p. 125. incorporation or general law of this State now in force, or which may
hereafter be enacted, or any railroad corporation organized, or which
may hereafter be organized under the laws of any other State, and do-
ing business in this State, shall charge, collect, demand or receive more
than a fair and reasonable rate of toll or compensation for the trans-
portation of passengers or freight of any description, or for the use
and transportation of any railroad car upon its track, or any of its
branches thereof, or upon any railroad within this State which it has
the right, license, or permission to use, operate or control, the same
shall be deemed guilty of- extortion, and, upon conviction thereof, shall
be dealt 'with as hereinafter provided.
§719. (d.) Unjust discrimination forbidden. If any railroad corporation
Acts of 1878 as aforesaid shall make any unjust discrimination in its rates or charges
L * «.~ 9 '.p- 12 y£t°£- toll or any compensation for the transportation of passengers or
r*^^****^* u ^^Ereights of any description, or for the use and transportation of any
* 0%X>r* railroad car upon its said road, or upon any of the branches thereof, or
'fit^*/f ^XV^ki any railroads connected therewith, which it has the right, license,
y, /t/"V7 or permission to operate, control, or use, within this State, the same
shall be deemed guilty of having violated the provisions of this Ar-
ticle, and, upon conviction thereof, shall be dealt with as hereinafter
provided.
:."*'-.-'
PART L— TITLE VI.— CHAPTER VII. 159
Article 5.— Railroads and turnpikes, their regulation and management.
§719. (e.) Duty of commissioners. The commissioners appointed as Acts of 1678
hereinbefore provided shall, as provided in the next section, make ~ 8, p * 125,
reasonable and just rates of freight and passenger tariffs, to be observed
b,y all railroad companies doing business in this State on the railroads
thereof; shall make reasonable and just rules and regulations, to be ob-
served by all railroad companies doing business in this State, as to
charges at any and all points, for the necessary handling and delivering
of freights ; shall make such just and reasonable rules and regulations
as may be necessary for preventing unjust discriminations in the trans-
portation of freight and passengers on the railroads in this State; shall
make reasonable and just rates of charges for use of railroad cars carrying
any and all kinds of freight and passengers on said railroads, no matter
by whom owned or carried; and shall make just and reasonable rules
land regulations, to be observed by said railroad companies on said rail-
roads, to prevent the giving or paying of any rebate or bonus, directly
or indirectly, and from misleading or deceiving the public in any
manner as to the real rates charged for freight and passengers : Pro-
vided, that nothing in this Article contained shall be taken as in any
manner abridging or controlling the rates for freight charged by any
railroad company in this State for carrying freight which comes from
pr goes beyond the boundaries of the State, and on which freight less
than local rates on any railroad carrying the same are charged by such
railroad, but said railroad companies shall possess the same power and
[right to charge such rates for carrying such freights as they possessed
before the 14th of October, 1879, and said commissioners shall have full
power by rules and regulations to designate and fix the difference in
rates of freight and passenger transportation, to be allowed for longer
ind shorter distances on the same or different railroads, and to ascertain
i/vhat shall be the limits of longer and shorter distances.
§719. (f.) Commissioners shall make schedule of rates. The said railroad Acts ofisvs
3ommissioners are hereby authorized and required to make for each~^ p ' 12 °
)f the railroad corporations doing business in this State, as soon as prac-
ticable, a schedule of just and reasonable rates of charges for the trans- /g*x -S /SJ
oortation of passengers and freights and cars on each of said railroads;', '
md said schedule shall, in suits brought against any such railroad Q,0Y-/<f^< f*
^orations wherein is involved the charges of any such railroad corpo- /f4,/t?/~ 2 -*?*
•ation for transportation of any passenger or freight or cars, or unjust' ' '
liscrimination in relation thereto, be deemed and taken in all courts 4^~s • /2^&y**-^s
>f this State as sufficient evidence that the rates therein fixed are^/K^" ? <?•
ust and reasonable rates of charges for the transportation of passengers o^z*-^-/^ *''
md freights and cars upon the railroads ; and said commissioners shall, /U/£j
rom time to time, and as often as circumstances may require, change • /
md revise said schedules. When any schedule shall have been made
>r revised, as aforesaid, it shall be the duty of said commissioners to
;ause publication thereof to be made for four successive weeks in some
)ublic newspaper published in the cities of Atlanta, Augusta, Albany,
Savannah, Macon, Rome and Columbus, in this State ; and after
he same shall be so published, it shall be the duty of all such
ailroad companies to post, at all their respective stations, in a conspi-
uous place, a copy of said schedule for the protection of the people :
\ovided, that the schedules thus prepared shall not be taken as evidence,
;S herein provided until schedules shall have been prepared and pub-
ished as aforesaid, for all the railroad companies now organized under
he laws of this State, or that may be organized at the time of saidpubli-
ation. All such schedules purporting to be printed and published as /r^./tT^
-foresaid, shall be received and held in all such suits as prima facie the'
chedules of said commissioners, without further proof than the pro-
duction of the schedules desired to be used as evidence, with a certifi-
o
160 PART I.— TITLE VI.— CHAPTER VII.
Article 5.— Railroads and turnpikes, their regulation and management.
cate of the railroad commission that the same is a true copy of the
schedule prepared by them for the railroad company or corporation
therein named, and that the same has been duly published as required
by law, stating the name of the paper in which the same was published,
together with the date and place of said publication.
J^z^s §719. (g.) Jurisdiction and power of commissioners. It shall be the duty
Acts of 1878 of said commissioners to investigate the books and papers of all the
?/S L a railroad companies doing business in this State, to ascertain if the
Yules and regulations aforesaid have been complied with, and to make
personal visitation of railroad offices, stations and other places of busi-
ness for the purpose of examinations, and to make rules and regulations
concerning such examinations, which rules and regulations shall be
observed, and obeyed as the other rules and regulations aforesaid ; said
commissioners shall also have full power and authority to examine all
agents and employees of said railroad companies, and other persons,
►under oath or otherwise, in order to procure the necessary information,
to make just and reasonable rates of freight and passenger tariffs, and
to ascertain if such rules and regulations are observed or violated, and
to make necessary and proper rules and regulations concerning such ex-
amination, and which rules and regulations herein provided for shall
be obeyed and enforced as all other rules and regulations provided- for
in this Article.
§719. (h.) Power of commissioners over contracts between railroads. All
Acts of 1878 contracts and agreements between railroad companies doing business
-9, p. 125. j n £kj s gtate as to rates of freight and passenger tariffs shall be sub-
mitted to said commissioners for inspection and correction, that it may
be seen whether or not they are a violation of the law or of the provis-
ions of the Constitution, or of this Article, or of the rules and regula-
tions of said commissioners, and all arrangements and agreements
whatever as to the division of earnings of any kind by competing
railroad companies doing business in this State, shall be submitted to
said commissioners for inspection and approval, in so far as they affect
rules and regulations made by said commissioners, to secure to all per-
sons doing business with said companies, just and reasonable rates
of freight and passenger tariffs, and said commissioners may make
such rules and regulations as to such contracts and agreements as may
be then deemed necessary and proper, and any such agreements not
approved by such commissioners, or by virtue of which rates shall be
charged exceeding the rates fixed for freight and passengers, shall be
deemed, held and taken to be, violations of Article 4, section 1, para-
graph 4, of the Constitution, and shall be illegal and void.
§719. (i.) Penalty for violation of rules. If any railroad company do-
Acts of 1878 ing business in this State, by its agents or employees shall be guilty of
-9, p. 125. a yioia^ion f the rules and regulations provided and prescribed by said
^^^' commissioners, and if, after due notice of such violation given to the
/a / < 7&-& < /• principal officer thereof, ample and full recompense for the wrong or
/ __ * injury done thereby to any person or corporation, as may be directed
£** by said commissioners, shall not be made within thirty days from the
time of such notice, such company shall incur a penalty for each offense
of not less than one thousand dollars, nor more than five thousand dol-
lars, to be fixed by the presiding Judge. An action for the recovery of
such penalty shall lie in any county in the State where such violation
has occurred, or wrong has been perpetrated, and shall be in the name
of the State of Georgia. The commissioners shall institute such action
through the Attorney-General or Solicitor-General, whose fees shall be
the same as now provided by law.
§719. (j.) Injuries resulting from violation of rules. If any railroad
company doing business in this State shall, in violation of any rule or
PART I.— TITLE VI.— CHAPTER VII. 161
Article 5.— Railroads and turnpikes, their regulation and management.
regulation provided by the commissioners aforesaid, inflict any wrong Acts of i87«
or injury on any person, such person shall have a right of action find -9 ' P- m -
recovery for such wrong or injury in the county where the same was
done in any court having jurisdiction thereof, and the damages to be
recovered shall be the same as in actions between individuals, except
that in cases of willful violation of law, such railroad companies shall be
liable to exemplary damages : Provided, that all suits under this Article .
shall be brought within twelve months after the commission of the al-
leged wrong or injury.
§719. (k.) Rules of evidence. In all cases under the provisions of this Acts <>f iktk
Article the rules of evidence shall be the same as in civil actions, except -9 ' p ' 125,
as hereinbefore otherwise provided. All fines recovered under the
provisions of this Article shall be paid into the State treasury, to be
used for such purposes as the General Assembly may provide. The
remedies hereby given the persons injured shall be regarded as cumu-
lative to the remedies now given by law against railroad corporations,
and this article shall not be construed as repealing any statute giving
such remedies.
§719. (1.) Meaning of terms. The terms "railroad corporation," or Acts of ih7*
"railroad company," contained in this Article shall be deemed ancl~ 9 ' p- m
taken to mean all corporations, companies or individuals now owning
or operating, or which may hereafter own or operate any railroad, in
whole or in part, in this State, and the provisions of this Article shall
apply to all persons, firms and companies, and to all associations of
persons, whether incorporated or otherwise, that shall do business as
common carriers upon any of the lines of railroad in this State, (street
railways excepted) the same as to railroad corporations hereinbefore
mentioned.
§719. (m.) Duplicate freight receipts. All railroad companies in this Acts of 1878
State shall, on demand, issue duplicate freight receipts to shippers, in" 9 ' p " 12) '
which shall be stated the class or classes of freight shipped, the freight
charges over the road giving the receipt, and so far as practicable shall
state the freight charges over other roads that carry such freight.
When the consignee presents the railroad receipt to the agent of the
railroad that delivers such freight, such agent shall deliver the article
shipped on payment of the rate charged for the class of freights men-
tioned in the receipt. If any railroad company shall violate this pro-
vision of the statute, such railroad company shall incur a penalty to
be fixed and collected as provided in section 719 (i.),
§719. (n.) Reports of commissioners. It shall be the duty of the com- Acts pfJ$f£
missioners herein provided for, to make to the Governor semi-annual -9 ' ptl ^
reports of the transactions of their office, and to recommend from time
to time such legislation as they may deem advisable under the pro-
visions of this Article.
§719. (o.) Power of commissioners over witnesses. Said railroad com mis- Acts of 1S7«
sioners, in making any examination for the purpose of obtaining infor- - ' p "
mation pursuant to this Article, shall have power to issue subpoenas for
the attendance of witnesses by such rules as they may prescribe. And
said witnesses shall receive for such attendance two dollars per day,
and five cents per mile traveled by the nearest practicable route in
going to and returning from the place of meeting of said commis-
sioners, to be ordered paid by the Governor upon presentation of sub-
poenas, sworn to by the witnesses, as to the number of days served and
miles traveled, before the clerk of said commissioners, who is hereby
authorized to administer oaths. In case any person shall willfully fail
or refuse to obey such subpoena, it shall be the duty of the Judge of the
Superior Court of any county, upon application of said commissioners,
to issue an attachment for such witness, and compel him to attend before
li
162 PART L— TITLE VI.— CHAPTER VII.
Article 5.-^Railroads and turnpikes, their regulation and management.
the commissioners and give his testimony upon such matters as shall
be lawfully required by such commissioners, and said Court shall have
power to punish for contempt, as in other cases of refusal to obey the
process and order of such Court.
§719. (p.) Railroad officers to report to commissioners. Every officer.
Acts of 1878 agent or employee of any railroad company who shall willfully neglect
„ ~ 9, p ' 12:> ' or refuse to make and furnish any report required by the commission-
% «: \ \ ers, as necessary to the purposes of this Article, or who shall willfully
and unlawfully hinder, delay or obstruct said commissioners in the
< discharge of the duties hereby imposed upon them, shall forfeit and
pay a sum of not less than one hundred, nor more than five thousand,
J dollars, for each offense, to be recovered in an action of debt in the
t name of the State.
t §719. (q.) Railroads required to deliver freights to connecting lines. All
Acts of 1874, railroad companies in this State shall, at the terminus, or any inter-
mediate point, be required to switch off and deliver to the connecting
road having the same guage, in the yard of the latter, all cars passing
over their lines, or any portion of the same, containing goods or freights
consigned, without rebate or deception, by any route, at the option of
the shipper, according to customary or published rates, to any point
over or beyond such connecting road, and any failure to do so with rea-
sonable diligence, according to the route by which such goods or freights
were consigned, shall be deemed and taken as a conversion in law, of
such goods or freights, and shall give a right of action to the owner or
consignee, for the value of the same, with interest, and not less than
ten per cent., nor more than twenty-five per cent, for expenses and
damages : Provided, that should the defendant in any suit brought under
this section, set up as a defense, that the plaintiff has accepted a rebate,
or practiced fraud or deception touching the rate, it shall be a complete
reply to such defense if the plaintiff' can prove that defendant, or its
agents, have allowed a rebate or rebates, or practiced like fraud or de-
ception from the same competing point against the rival line.
§719. (r.) Railroads may join their tracks, etc. Where any railroad, in
Acts of 1874, this State, joins another at any point along its line, or where two of
p ' such roads have the same terminus, either line, having the same guage,
may, at its own expense, join its track by the proper and safe switches,
with the other, should such other road or company refuse to join in the
work and expense.
§719. (s.) Discriminations illegal. No railroad company shall discrim-
Actsofi874, inate in its rates or tariff of freights in favor of any line or route con-
nscted with it as against any other line or route, nor when a part of its
own line is sought to be run in connection with any other route, shall
su^h company discriminate against such connecting line, or in favor of
the balance of its own line, but shall have the same rates for all, and shall
* 9 afford the usual and like customary facilities for interchange of freights
to patrons of 'each and all routes or lines alike; any refusal of the same
' shall give a like right of action as mentioned in section 719 (q.) of this
Code.
§719 (t.) Right to connect switches, hoio enforced, Should any railroad
Acts of 1874, company refuse to allow the connecting switches put in its line when
• 95 - requested under section 719 (r.), it shall and may be lawful for the other
road, seeking such connection, to proceed to procure right to use so
much of the franchise of the former as may be necessary for such pur-
pose, in the manner pointed out in the charter of the Central Railroad
and Banking Company, for ascertaining the value of and paying for
private property, taken for use of said road.
§719. (u.) Application of the foregoing. None of the provisions of the
foregoing sections shall apply to shipments or consignments of freights
PART L— TITLE VI.— QHAPTER VII. 168
Article 5.— Railroads and turnpikes, their regulation and management.
from points beyond the limits of this State, except such as come by sea, Acts of 1874,
and except such as pass over the Western and Atlantic Railroad, and in p - 95 -
respect to said road, these provisions shall be construed as in harmony
with, and in furtherance of, the provisions of the law and contract under
which the same is leased, by which discriminations against other lines
are forbiddem
§719. (v.) Commissioners of turnpikes. There shall be in each county /fX- -t t ?*-
of this State, through which any turnpike road passes, or through /£# -/, f,2-2~¥\
which any part of any turnpike road passes, a board of commissioners/ '
to be known as commissioners % of turnpikes.
§719. (w.) Number and election. Said board shall consist of three per- Acts of 187*--
sons, to be elected by the grand juries of each county through which ~ 9, p - 74 -
any turnpike road, or any part of the same, passes, at their first session
to be held after 14th December, 1878 ; and any person qualified to vote
and hold office under the Constitution and laws of this State, shall be
eligible as such commissioner.
§719. (x.) Report and certificate of election. It shall be the duty of the Acts of 187S-
several grand juries so electing commissioners, to report the fact of such -9, p - 74 -
election in their general presentments at the term at which the same
occurs, giving the names of the persons so elected ; and thereupon it
shall be the duty of the Clerk of the Superior Court of the county to
issue to each .of said persons so named a certificate of his election and
appointment, which shall have the force and effect of a commission.
§719. (y.) Term of office. The commissioners selected, as hereinbefore Acts of I87s<
provided, shall hold their offices for the term of two years, and until ~ 9, p - 74 -
their successors are elected in the manner first herein pointed out.
§719. (z.) Duty of commissioners. It shall be the duty of said boards Acts of 1878
of commissioners to inspect the condition of any and all turnpike ~ 9 ' p> 74 "
roads in their counties as often as every three months, and to see to it
that such roads are kept in good condition to be traveled over, and are
graded according to the terms of their charters, respectively ; and
that the tolls charged are not greater than allowed by such charters.
§719. (aa.) Proceedings against defaulting owners of turnpikes. When- Acts of i87S<
ever it shall be ascertained that any turnpike road is being used, and ~ 7 ' p< 74,
kept as such by its owners, and is not graded as required by its charter
it shall be the duty of the commissioners aforesaid to make out a state-
ment, wherein shall be specified, as nearty as may be, the defects in.
such roads, a copy of which shall be served upon the keeper of the toll.
gates on such road, which shall be deemed and held as service upon
the owners of such turnpike; and should such owners fail or refuse
to make such road in compliance with the terms of its charter, for
thirty days after such notice, it shall be the duty of such commissioners
to forthwith institute suit against such owner, owners or company, to
forfeit its charter which suit shall be in the name of the commissioners.
$719. (bb.) Duty of commissioners as to turnpikes out of repair. In all, Acts of 1878
cases where turnpike roads are neglected and suffered to get into a con- -9 ' p - 74,
iition that they cannot be traveled over comfortably by travelers, and
Irayed over successfully, it shall be the duty of the commissioners afore-
said in the counties where such roads are, to notify the keeper of the
oil-gates on such road of the condition of the same, and, unless such
oad is immediately repaired and put in good condition, it shall be the
iuty of such commissioners to institute the proceeding provided for in
section 719 (aa.), and on the trial of said case, provided for in this see-
ion, if the fault or failure of such owner, company or corporation should
)e deemed insufficient to authorize the forfeiture of its charter, the
neasure of damages to the public, may, nevertheless, be estimated in.
lollars and cents by the jury trying such case, judgment for which may
>e entered against such owner, company or corporation, and when coh
164
PART I.— TITLE VI:— CHAPTER VII.
Article 6. — Private ways.
-9, p. 74.
lected shall be expended under the supervision and direction of the
commissioners instituting such suit, in improvements and betterments
upon the road complained of.
§719. (cc.) Compensation of commissioners. Each of said commissioners
Acts of 1878 shall receive, as compensation, one dollar per day for the time actually
-3, p. /4. sp en t in inspecting roads as provided for, and all necessary expenses
actually incurred by them in consequence of the prosecution of any suit,
as herein provided for, to be paid by the county of such commissioners.
§719. (dd.) Extent of jurisdiction. In cases where any turnpike road,
Acts of 1878 the property of the same owners, or company, runs through more coun-
ties than one, or into more counties than one, it shall, nevertheless, be
competent for the commissioners herein provided for, in either of the
counties in which any part of said road may be, to perform all the du-
ties herein imposed, and to institute and maintain the suits herein
provided for, without the co-operation of the commissioners of the other
county, or counties, through which such road passes, and any judgment
of forfeiture so obtained shall apply to the whole road.
General Note on Article V. — Act creating railroad commission constitutional:
Tilley vs. Savannah, etc., Railroad Co., 5 Federal Reporter 671-665. Rates of fare and
freight subject to legislative control: 4 0., 113, 161, 164, 171, 180; 9/719; 35 Wis., 425;
38/194; 19 Minn., 434; 29 0hioSt., 126, 208; 34/572. 61 Ala., 559; 91 III., 256; 95/313;
74 Pa. St., 181; Pierce on R. R., 466; Field Corp., $39. Discriminations as to freight:
See note to $2069 ; as to persons, note to $3035.
ARTICLE VI.
PRIVATE WAYS.
Section.
720. Private ways by whom granted.
721. Must be kept open.
722. How obtained.
723. How laid out, notice of application.
724. Damages, how assessed.
725. Applicant may decline to open.
726. May be established by agreement.
727. Protected as public roads.
728. Persons may join in opening, etc.
729. May apportion work. etc.
730. Private way over wild lands.
731. Seven years' uninterrupted use.
Section.
732. Cannot be closed after one year.
733. Special damages in certain cases.
734. When there is but one bluff, etc.
735. Application for use of landing.
736. Damages omitted in the grant. ,
737. Prescriptive right. . .
738. Obstructions, how removed.
739. No appeal, certiorari.
740. Fees in such cases.
741. May be converted into a public road.
741. (a.) Concurrent jurisdiction of Ordinary
as to obstructions.
§720. (754.) (692.) Private ways, by whom granted. The Ordinaries
Act of 1834, have authority to grant private ways to individuals to go from and re-
Acts of i'853 turn to their farms or places of residence.
-4, p. 88, The County Judge, of Richmond county : 62 Ga., 319.
§721. (755.) (693.) Not more than fifteen feet wide. They must not ex
ceed fifteen feet in width, and must be kept open and in repair by the
person on whose application they are established, and may be as mucr
less as the applicant may choose.
Section cited and construed as to the kind of road and the occupation necessary t<
obtain a prescriptive right : 61 Ga., 29-30. A neighborhood road- used by a settlemenj
of people is not a public road : 61 Ga., 156.
§722. (756.) (694.) How obtained. Any person desiring any such passj
way over the land of another, must petition the Ordinary, setting fortl!
particularly the distance and direction of such road, over whose land i
is to go, through what improvements, if any, and their nature, and thi
special purpose for which it is desired.
§723. (757.) (695.) Twenty days' notice, appeal, etc. After all person:
Acts of i85i over whose lands such passway is to be made shall have had twent I
-2, p. 28i. (jayg' notice in writing, of such application, and such Ordinary sha]|
be satisfied that such applicant is entitled to the same, they shall ar
point five commissioners who shall be disinterested persons, any threj
I
PART L— TITLE VI.— CHAPTER VII. 165
^ * __^ _____
Article 6. — Private ways.
or five of whom may act, to view and lay out such road, so as to do the
least possible damage and inconvenience to the land-owners, who shall
make their report within thirty days from their appointment. They
shall make out their -report in writing, and furnish all the parties in in-
terest with copies thereof; and if either party is dissatisfied with such
report, by giving the other five days' notice in writing, he may take an
appeal to the Ordinary, who, after having all the evidence, pro and con,
may confirm said report or alter the same, which, when done, shall be final.
§724. (758.) (696.) Damages, how assessed. If the person then, over Acts of 1851
whose land the passwajr is, conceives that he will be damaged thereby, ~ 2 ' p ' 28L
he may proceed to have the damages assessed in the same manner that
damages are assessed incase of public roads, and the applicant therefor
stands in the place of the county and road commissioners.
§725. (759.) (697.) Applicant may decline to open the way. After the
damages are thus assessed, the person who has them to pay may decline
to open the same, but he is bound for the costs of all the proceedings,
whether he uses the passway or not, for which the Ordinary may issue
an execution; and in all cases the damages must be paid before the way
is opened.
§726. (760.) (698.) May be established by agreement. Private ways may
be established by an agreement in writing of all parties concerned, in
which may be stipulated any damages, which "must be spread on the
road book of the county, and when so done, has the same effect as
though established by the forms of law.
§727. (761.) (699.) Recorded and protected. When a private way be-
comes established, it must be entered on and fully described in the road
book, and the owner thereof is entitled to be protected in the use of the
same as a public road.
§728. (762.) (700.) Land owners may join in opening a way. Several
land owners may join together in opening a private way, or in keeping
it up afterwards, or both ; and when so done and entered on the road
book, the duties and privileges extend to vendees of the same real estate.
§729. (763.) (701.) May apportion the work. When several so join, they
may apportion the road for work among themselves, or work it under
the road laws, selecting one of their number as road commissioner, whose
powers are the same touching such road and the hands thereof as the
three road commissioners of the district.
§730. (764.) (702.) On wild lands. If a private way is established
over the wild lands of a person who has no notice of the proceeding, as
soon as he does have such notice, and within six months thereafter, he
may proceed to have his damages assessed against all persons who are
land owners and are in the habitual use of such private way, and not after.
§731. (765.) (703.) Prescriptive right to way. When a person has laid,
out a private way, and has been in the use and enjoyment of it as much
as seven years, of which the owners have had six months' knowledge
without moving for damages, his right to use becomes complete, and
such owners are barred of damages.
But must be one fixed route only, not more than fifteen feet wide: 61 Ga., 29-30.
Section cited and the use of a private way for seven years must be without intermission
to create a right by prescription : 53 Ga., 232-5.
§732. (766.) (704.) Cannot be closed after one year without notice. When
a road has been used as a private way for as much as one year, an
owner of land over which it passes cannot close it up without first giv-
ing the common users of the way thirty days' notice in writing, that
they may take steps to have it made permanent.
§733. (767.) (705.) Special ways. When a private way is established
over the land of another for the purpose of hauling wood or timber, or
other commodity, to any place of landing whereat the business of rafting
166 PART L— TITLE VI.— CHAPTER VII.
Article 6. — Private ways.
or shipping is carried on, or to any railroad depot, it shall not extend
to the use of any landing erected by a person for his own benefit.
§734. (768.) (706.) If there is but one bluff. If, however, there should
Acts of 1853 be but one bluff or place of landing, the owner cannot appropriate such
-4, p. 90. £ himself exclusively, if he will not be damaged by the admission of
others to its use, or, if damaged, he is properly compensated therefor;
but no person shall be entitled to use the wood-slide or other improve-
ment erected for one's own use, nor timber landing, while he is us-
ing it.
§735. (769.) (707.) The use of another landing. When the applicant
for a private way desires also to use another's landing, he must so state
in his petition, that proper damages may be assessed therefor.
§736. (770.) (708.) Omission to assess damages. If a private way is es-
tablished and there is an omission to have considered the damages for
using such, it may be done afterwards if within a reasonable time.
§737. Prescriptive right of way. [Whenever a private way has been in
(a) Acts of constant and uninterrupted use for seven years, or more, and no legal
' p ' ' steps have been taken to abolish the same, it shall not be lawful for any
one to interfere with said private way.] (a.)
Section cited and where it was not shown in reference to a private way that there
had been seven years of uninterrupted user : 62 Ga., 422. Must be uninterrupted user
for seven years : 53 Ga., 232-5. And user on one fixed route only : 61 Ga., 29-30.
§738. Obstructions, how removed. [In the event the owner, or owners
(b) Acts of of land, over which such private way may pass, or any other person shall
1872, p. 60. obstruct, close up, or otherwise render said private way unfit for use, it
shall and may be lawful for the party, or parties injured by such ob-
structions, or other interference, to petition the Ordinary in the county
where such private way has been in use to remove such obstructions,
and upon the petition being filed, it shall be the duty of the Ordinary
to issue a rule nisi, directed to the party or parties complained against
(which rule shall be served by the Sheriff or his deputy), calling upon
the offending parties to show cause why said obstructions should not be
removed, and the free use of said private way be re-established. Said
rule shall be served at least three days before the day set apart for the
hearing of the same, and when the day arrives the Ordinary shall pro-
ceed to hear evidence as to said obstructions, or other interference, and
if it should appear that said private way had been in continuous,
1 Uninterrupted use for seven years, or more, and no steps taken to pre-
vent the enjoyment of the same, then it shall be the duty of the Ordi-
nary to grant an order directing the party, or parties so obstructing, or
otherwise interfering with said right of way, to remove said obstruc-
; tions, or other interference within forty-eight hours, and in the event
1 of failure so to remove said obstructions, it shall be the duty of the Or-
dinary to issue a warrant directed to the Sheriff, commanding him,
forthwith, to remove said obstructions], (b.)
Confined to obstruction of private ways arising by prescriptive right under this sec-
tion : 63 Ga., 658. Obstructing a private way : 55 Ga., 310. As to procedure under this
section: 64 Ga., 339; 60/101. A neighborhood road used by one settlement of people
is not a public road : 61 Ga., 156.
§739. No appeal, certiorari. [There shall be no appeal from the judg-
(e) Acts ofment of said Ordinary; but either party being dissatisfied, shall have
1872, p. 61. ^ e rig]^ fa sue ou t a wr it of certiorari, and have said judgment reversed
by the Judge of the Superior Court, said certiorari to be had as in other
cases now provided by law.] (c.)
§740. Fees of officers. [The fees of the Ordinary in each such case
(d) Acts of shall be three dollars, to be paid by the losing party. Sheriffs fees the
1872, p. 6i. same as serving declaration, or other process of Court.] (d.)
PART L— TITLE VI.— CHAPTER VII.
Oi
Article 7.— Mining.
§741. (771.) (709.) May be converted into public road. When a private
way is once established, it is in the power of the Ordinary to declare it
a public road, provided it is of sufficient length and importance, and
the number of persons who habitually use it can and will do as much
work thereon as is their proper share, in working the same alone or in
connection with adjacent public roads.
§741. (a.) Ordinary, concurrent jurisdiction over obstructions. Ordina- Actson877,
ries shall have jurisdiction, concurrent, at least, with other tribunals, p-
in all cases and in all counties of this State, over the question of the
removal of obstructions from roads, as is provided in section 738 of the
Code, notwithstanding any local or other law conferring jurisdiction on
any other tribunal.
General Note. — The Act of 1834 authorizing the granting of private ways without
just compensation is unconstitutional: 9 Ga., 37. Injunction against a defendant for
obstructing a road over his own land to which plaintiff did not have right-of-way. and
which was not a public road, refused: 44 Ga., 30. Defendant who established a private
road cannot be made to keep it in repair for others: 53 Ga., 232. When a neighbor-
hood road was not a public road : 61 Ga., 156.
General Note on Private Ways. — Condemnation of land for: 22 Am. D., 692;
13 Am. P., 404. Right of grantee to erect gates across: 24 Am. R., 506. Necessity,
right-of-way by : 3 Am. D., 43 ; 5/107 ; 7/188 ; 13/741, n, 746 ; 15/622 : 23 Am. R., 440, n,
446 ; 36/404, n, 415 ; 2 Wash. Real Pr., 282, 306. Prescription : 13 Am. D., 741 : 16/451 ;
21 Am. R.,519. Right-of-way, how destroyed: 17 Am. D., 710. How may be exer-
cised : 19 Am. D., 330. Passes as appurtenant to land granted, when : 7 Am. D., 617 ;
17 Am. D., 428; 23 Am. R, 149. See, generally: 2 Bl. Com., 35; 3/218; 2 Washburn
on Real Pr., 275, 312; Thomp. Law of Farm, ^364-378.
ARTICLE VII.
MINING.
Section.
742. Right of way for miners.
743. Return of award.
744. Diversion of water courses.
745. Rendition of award.
746. Mining, privileges of.
747. Application for privileges.
Section.
748. Appeal from award, etc.
749. Arbitrators, how selected.
750. Lessees of mines.
751. Fees of Ordinary, etc.
752. Draining privileges.
753. Proceedings to obtain.
§742. (772.) Mining companies, right of way. [In all cases where any Acts of \m
partnership, corporation, or individual, may be hereafter actually en- C' v '/^' 1
gaged in the business of mining iron, copper, gold, coal, or any other ( &
useful metal or mineral, or in making copperas, sulphur, saltpetre, alum, )^^
or other similar articles of utility, and such partnership, corporation, or
individual, shall be of the opinion that it is necessary to the successful
operation of their works that they shall have the right of way for either
a railroad, turnpike or common road of travel across the lands of others,
upon failure to agree with the owner of the lands across which such
right of way is desirable, to have both the necessity and value of the
same settled, as follows: The said corporation, partnership or individ- (i) Acts of
ual, shall select one person, the owner of the land another person, andi^i' 7 "
the Ordinary of the county where the land lies shall be the third man,
who, together with the two chosen as above provided, shall summon
the parties and such witnesses as they may deem necessary to appoint,
after reasonable notice, and after fully hearing evidences and reasons
on both sides, they shall decide both as to the necessity of the right of
way and the value of the same.] (a.)
§743. (773.) Award, when returned, [They shall return their award to (t) Acts of
the next Superior Court of the county where the land is situated;^ 3 '
whereupon the same shall be made the judgment of said Court, binding
and conclusive upon both parties, unless then and there set aside for
reason now applicable in other cases of arbitration], (a.)
168 PART I —TITLE VI.— CHAPTER VII.
Article 7. — Mining.
§744. (774.) May dived water courses. [In all cases where it may be
deemed desirable and necessary to divert any water course from its
usual channel, for any of the purposes specified in section 742, it shall
be lawful to organize the board of arbitrators, as provided in said section
742, whose duty in relation to the same shall be to decide both as to the
necessity of diverting the water course, and who are damaged, and how
much. It shall be the duty of the arbitrators to summon before them
all the parties interested in the question, and to return their award to
the Superior Court as provided in section 743, subject to be there set
aside for reasons now applicable in other cases of arbitration ; otherwise
to stand as the judgment of the Court.]
* §745. (775.) Reports of award and right of appeal [It shall be the duty.
(hi i Acts of of the arbitrators in all cases arising under the provisions of this Article
mfi72. PP ' to make return of their award on the first day of the Superior Court
held thereafter, in the county where the same is awarded; and at such
time all and any of the parties affected thereby shall have the right of
appeal to said Superior Court : Provided, such appeal is entered within
four days from the time said award is filed; the said appeal to be en-
tered and disposed of under the same rules and regulations which now
govern other cases of appeal], (b.)
§746. Mining, privileges incidental thereto. [The Qwner of any mine
(a) Acts of shall have the right to enter upon any land intervening between the
L ' p ' ■ mine and the water power upon which the same is dependent, and to
cut thereon such ditch, canal or tunnel, or to construct such flume, or
other aqueduct, and to build such dam as may be necessary to control
said water power: Provided, that the party desiring to cut such ditch,
canal or tunnel, or to construct such flume or other aqueduct, or to
erect such dam, shall first have the damages assessed arising to the
owner of such intervening land, or owner of the land on which such
dam is to be erected, by reason of the cutting of such ditch, canal or
tunnel, or the construction of such flume or other aqueduct, and the
erection of such dam, and shall pay to the owner of the land so inter-
vening, or on which such dam is to be erected, the damages which may
be assesed in the manner hereafter provided], (a.)
§747. Application for privileges. [The owner of the mine shall, after
i!§8 Ac ? ° f nav ^ n o given the owner of the land to be entered upon at least five days'
iso, I4p. notice of his intention to make such application, present to the Ordi-
nary of the county his written application for the right and privi-
lege of cutting such ditch, canal or tunnel, or constructing such flume
or acqueduct, or erecting such dam; which application shall, with con-
venient certainty, describe the land to be entered upon, the right and
privilege desired thereon, and the name of the owner of the land; and
thereupon the owner of the mine shall select one freeholder, and the
owner of the land to be entered upon shall select another freeholder, and
the Ordinary of the county shall appoint a third freeholder, and the
names of the freeholders so selected and appointed shall be indorsed
on said written application; and the said application, so indorsed
as last aforesaid, shall be delivered or transmitted by the said Ordinary to
one of the said freeholders; and the three freeholders so elected and ap-
pointed .as aforesaid, shall survey the premises and make an award of
the damages, which award shall be returned to the Ordinary of the
county and filed in his office ; and which award, [unless appealed from
as hereafter provided,) shall be final; but no right of entry shall
accrue until the damages assessed are first paid, or deposited in the Or-
dinary's office, in case t'le owner of the land shall refuse to receive th^
same, or shall appeal from said award.] (b.)
§748. Appeal from award, rights of miner. [Either parly in such cases
shall have the right to appeal from such award at any time within four
PART L— TITLE VI.— CHAPTER VII. 169
Article 7.— Mining.
days from the riling of said award in the Ordinary's office, and in case (<•) Acts of
of appeal, the award, together with the other papers, shall be by the 1868, p - 14 °-
Ordinary transmitted to the Superior Court of the county in which the
land shall lie, and such appeal case shall be there tried by a jury as
other appeal cases are tried. If the owner of the land shall enter an
appeal from the award, the owner of the mine shall not be stayed there-
by from his entry on said land, but on depositing the amount of dam-
ages assessed with the Ordinary of the county, he shall have the same
right and privilege of entering on such land for any or all the purposes
aforesaid, as if no appeal had been entered.] (c.)
§749. Freeholders, how selected in certain cases. [If the owner of the (d) Acts of
land to be entered on shall fail or refuse to select a freeholder, as pro- 1868 ' p> 140 '
vided in section 747, on or before the day specified in the notice served
upon him, then and in that case the Ordinary of the county shall select
a freeholder for him, and shall indorse the name of such freeholder on
said application, and such person so selected, together with the other
two arbitrators, shall proceed in the manner as hereinbefore prescribed.
If the owner of the land to be entered on is a minor, the notice re-
quired in section 747 shall be given to the guardian of said minor, who
shall have the -same right and power to act in the premises that the
minor could exercise if of full age. If the land to be entered upon be-
longs to the estate of a deceased person, the said notice shall be given
to the executor of the will of such deceased person, or to the admin-
istrator on the estate for such deceased person, as the case may be,
and such executor or administrator shall have the same power to act
for the estate he represents that owners of lands have. Either party
may do and perform all that is required of them by the four preceding
sections, by his agent or attorney duly authorized.] (d.)
§750. Lessee of mine deemed the owner. [Any person or company of (c) Acts of
persons engaged in working a mine, under a lease granted to him or them 140, iff"
for that purpose, shall be held and regarded as owner or owners for all the
purposes of this and the four preceding sections and the two follow-
ing sections, and as such shall be entitled to avail himself or them-
selves of the benefits and privileges of said sections of this Code : Pro-
vided, that in no instance the water shall be drawn from any- mill or
factory now in operation.] (e.)
§751. Fees of Ordinary and freeholders. [The fees of the Ordinary (fj Acts of
and of the freeholders for services hereinbefore specified shall be two 1868, p ' 141,
dollars each, which shall be paid by the applicant, and the payment
of which may be enforced by execution to be issued by the Ordi-
nary.] (f.)
§752. Draining privileges, how obtained. [The owner of any minefe) Acts of
shall have the right to enter upon any land, and to cut and open thereon ^-S"^^
such ditches, canals and tunnels, or to construct such flumes or other ^^^^
aqueducts as may be necessary to drain his mine, or to carry off and
drain away the water and tailings of such mine or mining operations/ /& s7~£/&*
Provided, that the party desiring to cut and open such ditches, canals or'/
tunnels, or to construct such flumes or other aqueducts shall first have
the damages assessed arising or which may arise to the owner of such
land by reason of the cutting and opening of such ditches, canals or
tunnels, or the construction of such flumes or other aqueducts ; and
shall pay the owners of such land the damages which may be assessed
in manner hereinafter mentioned.] (g. )
§753. Application and proceedings thereon. [The owner of the mines (W Acts ° f
who desires the right and privilege of cutting and opening such ditches, ' ' p '
canals or tunnels, or of constructing su.ch flumes or other aqueducts,
shall make his application under and according to the provisions and
requirements specified in sections 747,748, 749, 750 and 751 of this Code,
170
PART I.— TITLE VI.— CHAPTER VIII.
The county poor.
and all proceeding in relation thereto shall be had, and the damages
shall be assessed and paid, according to said provisions and require-
ments, all of which are hereby extended to the owners pf mines desir-
ing to drain their mines, and to carry off the water and tailings from
their mines and mining operations, through or over the land of
others.] (h.)
It is a necessary incident of a mining corporation that it shall have power to con-
tract and bind itself to those dealing with it in matters within the intent of the charter,
even although the charter contains no express grant or power to contract or make
debts: 45 Ga.. 34.
General Note ok Mines. — Equity takes jurisdiction in contest about mining
claims, when : 3 C. L. J., 569. Damages for mining on another's land : 24 Am. D., 77 ;
25 Am. R., 342. Support of surface: 5 Am. R., 385; 34/242. Reservation of right to
minerals: 15 Am. R., 464, and note, 470; Wood on Nuisance, 184. See, generally:
works of Collier (L. L.) & Rogers — English; Weeks & Blanchard, and Morrison's Di-
gest — American.
CHAPTER VIII.
THE COUNTY POOR.
Section.
754. Paupers.
755. Poor house.
756. Pauper farms.
757. Tax to buy farms.
758. Regulation of farms.
759. Workshops, etc.
760. Commissioners of the poor.
761. Receipts, disbursements, amounts.
762. Applications by the poor, etc.
763. Who are considered paupers.
Section.
764. Parents and children bound, etc.
765. Certificate of the Ordinary.
766. Burial of paupers.
767. Persons removing paupers.
768. Such persons being insolvent.
769. Paupers left by companies, etc.
770. Security required, etc.
771. Bond filed with Ordinary.
772. Party failing to give security.
773. Pauper found to be a lunatic.
Act of 1792,
C. p. 346.
Act of 1818,
C. p. 347.
§754. (776.) (710.) Paupers. The general supervision of all paupers is
vested in the Ordinaries of each county.
The acts cited on the margin confer the right to inquire into the circumstances of
the poor, to elect who shall be treated as paupers, and who shall become chargeable to
the county, and until this has been done by some act or order, no person can properly
be said to be thus chargeable : 16 Ga., 89. Prior to the Code the tax for the support of
paupers, might extend to one-eighth of one per cent. : 34 Ga., 370.
§755. (777.) (711.) Poor houses. They have authority to purchase
lands for a poor house, the title thereto vesting in the county, or to rent
improvements for such purpose, or to board out the poor, and to make
all necessary contracts in relation to them.
§756. (778.) Pauper farms. [Upon the recommendation of the grand
(a) Acts of j ur ie s of their respective counties, said Ordinaries shall have power and
1865-6, p. authority to purchase a house and farm in their respective counties,
upon which farm they may require all paupers in said counties to
labor who are not, from old age and disease, unable to work.] (a.)
§757. (779.) Tax. [The said Ordinaries have authority to lay and
collect a tax for the purpose of purchasing said house and farm.] (a.)
§758. (780.) Regulation of. Thej^ are also authorized to establish
all necessary rules and regulations in the management of said farms.]
(a.)
§759. (781.) Workshops, etc. [They are further authorized to establish
any workshops, and school houses, or churches on said farms, as they
may deem proper, and may do any and everything necessary to be done,
in carrying out the provisions of this and the three sections imme-
diately preceding it.] (a.)
§760. (782.) (712.) Commissioners of the poor. They shall, if necessary,
appoint a commissioner of the poor, and the money arising from the
poor tax shall be paid into the hands of the County Treasurer, on orders
granted in his favor by such Ordinaries, or in favor of any other person.
PART L— TITLE VI.— CHAPTER VIII. 171
The county poor.
§761. (783.) (713.) Receiver and disburser. Whoever receives and dis-
burses such fund must, once in every year, at the time such Ordinaries
may order, or oftener if they require, make up his account and lay the
same before them, who shall allow or disallow, and whenever there is
a deficiency or liability on the part of such person, he may be ruled
for the amount as an officer of Court.
§762. (784.) (714.) Application of pauper. Application to be provided
for as a pauper may be made at any time to the commissioner of the
poor or the Ordinary, upon which a hearing must be had, with the
least possible delay, by the Ordinary, and the person to whom such
application is made is authorized to provide for such applicant as other
county poor until a hearing is had.
§763. (785.) (715.) Who are paupers. No person shall be entitled to the
benefits of the provision for the poor who is able to maintain himself or
herself by labor, or if not, has sufficient means, and in cases where
females are unable to maintain themselves and the helpless children
they may have also, they may be aided to the extent required in the
furnishing of food, clothing or shelter.
§764. (786.) (716.) Parents and children bound to support each other. If any
such person has father, mother or child of sufficient ability, he or she
must be supported by them, and failing so to do, any county in this
State having made provision for such persons, may sue persons of full
age standing in such relation to them, and recover for the time such
| county has made provision for such person ; always provided, the person
sued was possessed of such ability.
§765. (787.) (717.) Certificate of the Ordinary. On the trial, the certifi-
cate of the Ordinary that the person was poor and unable to sustain
| himself, and that he was maintained for such a time at the expense of
the county, is presumptive evidence of such maintenance, and the
costs thereof.
§766. (788.) Paupers, how buried. [Whenever any person shall die in Acts of ises
this State, whose family and immediate kindred are indigent and un- -4 -?- 60 -
able to provide for the decent interment of such deceased person, and
where the deceased is a pauper and destitute of the means of paying for
decent interment, the Ordinary of the county where said death shall
occur, is authorized, and it is hereby made his duty, in case there be
any pauper funds belonging to the county unexpended, to appropriate
a sufficient amount thereof to provide a decent interment for such de-
ceased pauper, or to reimburse such person as may have expended the
same voluntarily — said appropriation not to exceed what is necessary
to defray the ordinary funeral expenses of persons dying in humble
circumstances in this State.] (a.)
§767. (789.) (718.) Persons removing paupers, liability. When any inhabi-
tant of any county, city, town or village, in or out of the State sends a
pauper to some county in this State, by paying the expense of trans-
portation, or otherwise has him removed for the purpose of burdening
some other community, the person so engaged shall be personally liable
for the support of the pauper in the county where he locates.
§768. (790.) (719.) County liable, when. If the person so engaged in
transporting a pauper is insolvent, or does not respond to such demand
from any cause, the county from which the transportation took place
shall be liable.
§769. (791.) (720.) Paupers left by migratory companies, etc. If any person
commanding any vessel, or the manager or proprietor of any theatrical,
circus, or any other migatory company, or their agent, or any person
passing or moving through this State, shall bring and leave or abandon
herein any infant, lunatic, maimed, deaf and dumb, blind, aged or in-
172
PART I —TITLE VII— CHAPTER I.
Incorporation of towns and villages.
firm person, who is or is likely to become chargeable to the county, he
may be brought by warrant before any judicial officer.
§770. (792.) (721.) May be required to give bond. If such officer is satisfied
that such person te or probably will become such charge, he must re-
quire such person to enter into bond, payable to the Governor of the
State and his successors in office, with sufficient sureties resident in
this State, for the sum of five hundred dollars, for each of such persons
so brought, conditioned to pay all such expenses as any county in the
State may lawfully incur in their support.
§771. (793.) (722.) Such bond to be filed in the office of the Ordinary. Said
bond must be filed in the office of the Ordinary of the county where the
paupers are at the time of its execution, and, upon condition broken,'
may be sued on and recoveries had, until exhausted in different actions,
in behalf of aiiy county or person who may have properly contributed
to the maintenance of such pauper.
§772. (794.) (723.) Failure to give bond. On failure to give such bond,
such person must be committed to jail until it is done, or until the next
term of the Superior Court of the county, when, if not done, or he
does not take care of said pauper, and pay all costs, he is guilty of a
misdemeanor, and, on conviction, shall be fined five hundred dollars,
and in default thereof, shall be imprisoned ninety days.
§773. (795.) (724.) Lunatics. When a pauper is found to be a lunatic,
idiot, deaf and dumb, or blind, they must be dealt with according to
the laws relating to them.
Failure to levy sufficient tax for: 4 C. L. J., 333.
TITLE VII.
INCORPORATION OF TOWNS AND VILLAGES.
7r. - J-^ J /e ft & # .4.e aJ*^ */j J • <6 <C
^/-^-
CHAPTER I.
INCORPORATION OF TOWNS AND VILLAGES.
Section.
774. Existing towns, how governed.
775. Application for incorporation.
776. Election for incorporation.
777. Certificate of incorporation.
778. Election for officers, how held.
779. What officers shall be elected.
780. Term of office.
781. Annual election and oath of officers.
Effect of failure to hold election.
Qualified voters.
784. Vacancies, and contested elections.
785. Presiding officer, quorum, books, etc.
786. Powers and duties of council.
786. (a.) Chain-gang.
786. (b.) Forfeiture of bond.
782.
783.
Section.
786. (c.) Offenders bound over or committed.
787. Taxes, on what, and how levied.
Streets, by whom and how worked.
Licenses.
Marshal's duty.
Lien for taxes, how enforced.
Mayor, power and duties of.
Compensation of officers.
Jail fees, how paid
795. Limits of town, how extended.
796. Officers not to contract, when.
797. Town debts, how created.
797. (a.) Other powers, exceptions.
797. (b.) Provisions extended to all towns.
797. (c.) Exceptions.
788.
789
790
791.
792
793
794
§774. Towns, by what law governed. [The towns and villages heretofore
(a) Acts of established in this State, shall remain subject to the laws now in force,
1863-4, p.eo. applicable thereto, respectively; and the provisions hereinafter set forth
shall be deemed applicable only to towns and villages hereafter estab-
lished, except that the council of a town or a village heretofore estab-
lished may exercise all the powers conferred by this chapter, although
the same may not be conferred by their charter ; and as far as this Act
confers powers on a town or village council, not conferred by the charter
PART I.— TITLE VII.— CHAPTER I. 173
Incorporation of towns and villages.
of any such town or village, the same shall be deemed an amendment
to said charter.] (a.)
Section cited and construed : 62 Ga., 425-7. How far th,e Act of 1872 is unconstitu-
tional: 60 Ga., 404.
§775. Application for incorporation, how made. [Whenever the qualified (b) Acts of
voters of any town or village, not incorporated, consisting of not less Act* of ; 21 it
than twenty-five qualified voters, wish to be incorporated, a petition Feb -> 187:; -
shall be filed by at least a majority of the male inhabitants of such
town or village in the Superior Court of the county in which the in-
habitants reside, stating in such petition the proposed boundaries of
such town, and the name to be given, if incorporated. The persons
intending to make such application shall give notice that they will
apply on some day therein specified, to said Superior Court, as aforesaid,
and shall also specif}^ in such notice a day on which all the qualified
voters residing in the proposed boundaries of such town will meet to
vote on the question of incorporation, which said notice shall, if there
be a newspaper printed within such territory, be printed therein once
in each week for four successive weeks previous to the time specified for
making such application and taking such vote, and if there be no such
paper, the notice shall be posted in at least three of the most public
places in such territory for four weeks at least before the time so spec-
ified therein], (b.)
§776. Corporation determined by election. [On the day mentioned in (e) Acts of
such notice for the taking of the vote mentioned in the preceding sec- 1872f p "
tion, the qualified voters residing within the proposed bounds of such
corporation, shall meet at the place named therein and cast their votes
for or against such incorporation. Each voter shall deposit a ballot in
a ballot box, to be provided for that purpose, with the words written
or printed thereon "for incorporation," or "against incorporation,"
which vote shall be taken under the superintendence of any three
voters, within the said boundary, appointed for that purpose by the
voters present, and the result of such vote shall be certified and returned
by them, under oath, to the Superior Court of the county, in case a ma-
jority of all the qualified voters residing within such boundary shall
vote in favor of such corporation], (c.)
§777. Certificate of incorporation. [Upon the filing of such certificate, (d) Acts of-
the Superior Court shall, by an order entered of record, direct the clerk if , ' pp '
of said Court to issue a certificate of the incorporation of such town or
village,, in form or in substance, as follows: "A certificate under oath of
A B, C D and E F, that a majority of the qualified voters in the follow-
ing boundaries, to-wit : (here recite the boundaries), having been given
in due form of law, in favor of the incorporation of the town (or village)
of , in the county of , and it appearing to the satisfaction of
the Court that the provisions of Title VII, Chapter I, of the Code of
Georgia, have been complied with by the applicants for said corporation,
the said town (or village) is duly authorized, within the corporate limits
aforesaid, to exercise all the corporate powers conferred by the Legisla-
ture of the State of Georgia, under the provisions of this Act, from and
after the date of this certificate, , clerk." And from and after the
date of such certificate the territory embraced within the boundary men-
tioned in said certificate, shall be an incorporated town or village, by
the name specified in said notice and certificate], (d.)
t §778. Election of officers, how held. [At the term of ordering the cer- (e) Acta of
tificate mentioned in the preceding section, the Court shall appoint if' 2 ' pp- 1 "
three legal voters residing within the said territory, who shall act as
inspectors at the first election to be held in said town, or village, as here-
inafter provided, and in case they shall fail, or refuse to act, the said
election may be held, certified and returned by any three voters of said
174 PART L— TITLE VII.— CHAPTER I.
Incorporation of towns and villages.
town, or village, appointed for that purpose by the voters present. The
first charter election for officers of such incorporation shall be held
within sixty days from the date of the certificate mentioned in the said
section, of which flection the appointed inspectors of election, or per-
sons acting as such, shall cause at least two weeks' notice .to be given
of the time and place of holding such election, and the officers to be
voted for. Such inspectors, or persons acting as such, after taking the
oath prescribed for superintendents of elections in the Code, shall pre-
side and act as inspectors of election, and all the laws applicable to the
election of county officers shall apply to such election, if not inconsistent
with the provisions of this chapter; and such inspectors shall, within
ten days after such election, grant a certificate to the person elected,
which shall be recorded among the records of such town, or village], (e.)
§779. What officers to be elected. [The municipal authorities of such
(f) Acts of town or village'shall be a mayor, a recorder and five councilmen, who
1872, p. is. together shall form a common council ; but no person shall be eligible
M*^*fs*w~ P L - aL *° either of said offices unless at the time of his election he resides
y^-within the corporation. The mayor, recorder and councilmen of such
v town or village as soon as they have been elected and qualified, as herein
ya'^i^provided, and their successors in office, shall be a body politic and cor-
/#& /f/* porate by the name of " the town (or village) of ," and shall have
/^fc ' perpetual succession, and a common seal, and by that name may sue
^2^rz^«- ^*— * — "ana oe sued, plead and be impleaded, purchase and hold real estate nec-
j<~ j t /, Z- 2 - &< essary to enable them the better to discharge their duties and needful
'7 . ^ for the good order, government and welfare of said town or village. All
£j2ao**** < **' the corporate powers of such corporation shall be exercised by said coun-
/4?tf7~/f< cil, or under their authority, except when otherwise provided. They
// * ' shall, also, elect a treasurer and marshal if they deem necessary, each
of whom, when elected, shall enter into a bond, with sufficient sureties,
approved of by the mayor, in such penalty as the board shall prescribe,
payable to the corporation, conditioned faithfully to collect and pay
over as required by the board, all taxes, fines, forfeitures, and all other
incomes of said corporation, and said officers shall continue in office
during the pleasure of council, and perform the duties respectively as
herein prescribed, or as may be required by the council.] (f.)
§780. Term of office. [The officers first elected in such town or village
(g)_ Acts of shall hold their offices until their, successors are elected and qualified.
18/2, p. 18. rp^g ^ ermg f a ij officers elected after the first election, shall commence
on the first Tuesday in February in each year, and shall be for one year,
and until their successors are elected and qualified.] (g.)
§781. Annual election and oath of officers. [After the first election of
(n) Acts of officers in such corporation, they shall be elected on every first Thursday
1872, p. is. - n j anuar y ? a f; s UC h. place in the town or village, and under such super-
vision, rules and regulations, (not inconsistent with the laws regulating
county elections,) as the council may prescribe; and every person elected
or appointed to an office in such corporation, shall, within twenty days
after his election or appointment, and before he shall enter upon the
duties of his office, take and subscribe the oath of office, which may be
done before any person authorized by law to administer oaths, or before
the mayor or recorder of such town or village, which oath, with the
certificate of the officer administering the same, shall be filed with the
recorder of the town or village.] (h.)
§782. Effect of failure to hold election. [The franchises of such corpora-
CD Acts of tion shall not be forfeited or discontinued by a failure to hold the elec-
1872, p. 19. ^ion^ai the proper time ; but the officer or other person authorized by
law, or, on their failure, any Justice of the Peace therein, may at any
time, on giving the inhabitants at least five days' notice thereof, by
advertisement in some newspaper, or by written or printed notices at
PART I.— TITLE VIL— CHAPTER I. 175
Incorporation of towns and villages.
three or more public places in the corporation, hold such election ; and
the persons elected at such election shall have the same powers and
authorities as if they had been elected at the regular period.] (i.)
§783. Qualified voters. [All persons who have heexLOona fide residents (j) Acts of
of such town or village for six months next preceding a charter election 1872, p - 19 *
held therein, and who are qualified voters under the Constitution and
laws of the State, and none others, shall be allowed at any charter
election in said town. But no person shall be deemed a resident of
any such town or village by reason of being a student of any school
or college therein, or being stationed therein for any temporary pur-
pose.] (j.)
Construed: 62 Ga., 425.
§784. Vacancies and contested elections. [When a vacancy shall occur (k) Act of
from any cause in the office of mayor, recorder, or in the council, the 1872, p " 19 '
vacancy shall be filled by appointment by the council from among the
citizens of the town or village, eligible under this chapter. All con-
tested elections shall be heard and decided by the council.] (k.)
'§785. Presiding officer, quorum, books, etc. [The council shall be pre- ( J \. A cts of
sided over at its meetings by the mayor, or, in his absence, by one of ' ' p " 19,
the councilmen, elected by a majority of the council present, and a
majority of the council shall be necessary to form a quorum for the
transaction of business. The council shall cause to be kept in a well-
bound book an accurate record of all its proceedings, by-laws, acts,
orders and resolutions, which shall be fully indexed and open to the
inspection of any one who is required to pay taxes in such town or
village. At such meeting of the council, the proceedings of the last
[meeting shall be read and corrected, if erroneous, and signed by the
presiding officer for the time being. Upon the call of any member,
the yeas and nays on any question shall be taken and recorded on the
journal. The mayor, in case of a tie, shall have the casting vote.] (1.)
§786. Powers and duties of the council. [Th^ council of such town or (m) Acts of
village shall have power therein to lay off, vacate, close, open, alter, 1S J?' p ' 20 ' ^ / JL
curb, pave and keep in good order, and repair roads, streets, alleys, side- ^ 7 *** ^t^***j
walks, crosswalks, drains and gutters, for the use of the public, or of 4^^^ /£**~
any of the citizens thereof, and to improve and light the same, and /f/- v #f ,--_*
have them kept free from obstructions on or over them; to regulate the ^*/L, c%%
Iwidth of side-walks on the streets, and to order the sidewalks, footways, * t*-+c*~~* 0*~ A -
crosswalks, drains and gutters to be curbed and paved and kept in /mS Jf-.
Ig-ood order, free and clean by the owner and occupants thereof, or of the ^ // ^
peal property next adjacent thereto ; to establish and regulate market ;
[to prescribe the time of holding the same; to prevent injury or an-
noyance to the public or individuals from anything dangerous, offen-
sive or unwholesome ; to prevent hogs, cattle, horses, sheep, and other ani-
nals, and fowls of all kinds, from going at large in such town or vil- /^^
age ; to protect places of divine worship in and about the premises
ivhere held ; to abate or cause to be abated, anything which, in the
)pinion of the majority of the whole council, shall be a nuisance; to
•egulate the keeping of gunpowder and other combustibles; to provide,
; n or near the town or village, places for the burial of the dead, and to
[•egulate interments therein ; to provide for the regular building of
louses or other structures, and for the making of division fences by
he owners of adjacent premises, and the drainage of lots by proper
Irains and ditches; to make regulations for guarding against danger or
lamage by fire ; to protect the property and person of the citizens of
uch town or village, and to preserve peace and good order therein, and
or this purpose to appoint, when necessary, a police force to assist the
aarshal in the discharge of his duties; to prescribe the powers and de-
fine the duties of the officers appointed by the council, fix their term
176 PAKT I.— TITLE VII.— CHAPTER I.
Incorporation of towns and villages.
of service and compensation, require and take from them bonds when
deemed necessary, payable to such town in its corporate name, with
such sureties and in such penalty as the council may see fit, conditioned
for the faithful discharge of their duties ; to erect or authorize, or pro-
hibit the erection of gas-works or water-works in the town; to prevent
injury to, or pollution of, the same, or to the water or healthful-
ness of the town; to regulate and provide for the weighing of hay,
coal and other articles sold or for sale in the town, and to provide a
revenue for the town and appropriate the same to its expenses; to pro-
vide for the annual assessment of taxable property therein, and to
adopt rules for the regulation and government of its own body. To
carry into effect these enumerated powers and all others conferred upon
such town or village, or its council, by this chapter, or by any future
Act of the legislature of the State, the council shall have power to
make and pass all needful orders, by-laws, ordinances, resolutions, rules
and regulations, not contrary to the constitution and laws of this
State, and to prescribe, impose and enact reasonable fines, penalties
and imprisonments in the county jail, or the place of imprisonment in
said incorporation, if there be one, for a term not exceeding thirty
days for the violation thereof.] (m.)
§786. (a.) May organize chain-gangs. As additions to powers existing
Acts of 1880 under present laws, the right and power to organize work-gangs or
-l, p. 179. ^her means of confinement and to confine at labor therein, for a term
not exceeding thirty days, persons convicted of violating the ordinances
of such towns and villages, are hereby conferred on the incorporated
towns and villages of this State, or their respective authorities : Pro-
vided, that said penalty shall be inflicted only as an alternative of fail-
ure or refusal to pay fines imposed for such violations.
§786. (b.) May provide for forfeiture of bonds. Any municipal corpo-
Acts of 1880 ration in this State shall have full power and authority to provide, by
-l, p. 176. ordinance, for the forfeiture of bonds given by offenders for their ap-
pearance before municipal Courts, and to fully provide for the col-
lection of the same from the principal and sureties to such bonds by
judgment, execution and sale.
§786. (c.) May bind over or commit offenders. Any mayor, recorder or
Acts of 1880 other proper officer, presiding in any municipal Court in this State,
-l, p. 176. ghali have authority to bind over, or commit to jail, offenders against
any criminal law of this State, whenever in the course of an investi-
gation before such officer a proper case therefor shall be made out by
the evidence.
§787. Taxes, on what, and how levied. [The council shall cause to be
(n) Acts of] annually made up, and entered upon its journal, an accurate estimate
1872, p. 2i. £ a n gums wn i cn are or may be lawfully chargeable on such town or
village, and which ought to be paid within one year, and it shall order
a levy of so much as may in its opinion be necessary to pay the same.
The levy so ordered shall be upon all dogs in the said town or village,
and upon all the real and personal estate therein, subject to State and
county tax : Provided, that the tax so levied shall not exceed one dollar
on every hundred dollars of the value thereof.] (n.)
§788. Streets, by whom, and how worked. [Every male resident of said
(o) Acts of town or village, not under sixteen nor over fifty years of age, shall, it
1872, p. 2i. re quired by the council thereof, work not exceeding fifteen days, by
himself or an acceptable substitute, on the roads, streets and alleys of
said town or village, under the direction of the superintendent of roads,
streets and alleys, or maybe released from such work upon the payment
to the superintendent or council of such amounts as may be fixed by
the council, the money so paid to be used in the improvement of said
roads, streets and alleys; and if said work and money so paid is not
PART L— TITLE VII.— CHAPTER I. 177
Incorporation of towns and villages.
sufficient to put and keep the roads, streets, alleys, side-walks, cross- Acts on*: -
walks, drains and gutters of such town or village in good repair, the -9, p-1 ' 4,
council thereof shall levy a tax on all the subjects of taxation therein,
sufficient for that purpose, and to pay all other expenses incident thereto.
And the municipal authorities of any incorporated city in this State
are hereby authorized to permit the enclosure of any lane, or alley, or
portion of a lane or alley in such city, when the owners of the lots abut-
ting on such lane or alley, or portion of the lane or alley, sought to be
secluded, and the owners of an}^ other lots to the enjoyment of which
access, through said lane or alley is necessary, consent: Provided, that
said municipal authorities may have the right at any time to re-open
said lane or alley], (o.)
§789. Licenses. [Whenever anything, for which State license is re- (p) Acts of
quired, is to be done within such town, or village, the council may re- 1872,p " 21
quire a town, or village, license therefor, and may impose a tax thereon
for the use of the town, or village, and may also require a bond, with
sureties, conditioned as prescribed in section 779, payable to such town
or village, in such penalty as it may think proper, and may revoke
such license at any time, if the condition of said bond be broken. And
they shall have power to license and regulate the management of bar- Actsofi876,
rooms, saloons, hotels, and private boarding houses, livery stables, and p - 25-
private and public transportation through the town or village, and in
addition to the ad valorem tax provided for by law, to levy a tax on all
billiard tables, ten-pin, or nine-pin alleys, and tables and alleys of any
other kind used for the purpose of playing on with pins or balls, or
both, within such town or village, and on all contrivances, of whatever
kind, used for the purpose of gaming or carrying on a game of chance,
by selling cards, tickets or numbers, or by turning a deal or wheel, by
using any other artifice or contrivance. They shall also have power to
tax all shows taxed by the laws of this State, which may exhibit within
such town or village, which tax may be collected, if not voluntarily
paid, by execution and levy and sale, as provided for the collection of
taxes under the general law prescribing the mode of incorporating
towns and villages; and said council shall have full power to pass all
ordinances necessary to carry into effect the provisions of this section].
(p.)
A town whose charter embraces this section has power to issue license to retail
spirits, and to tax therefor : 62 Ga., 423-7.
§790. Marshal's duty. [It shall be the duty of the marshal to collect ^ 2 Acts 2 f
the town, or village taxes, fines, levies and assessments, and in case the '
same are not paid within one month after they are .placed in his hands
for collection, the council shall issue execution therefor, and the marshal
may levy and sell therefore, in like manner, and under the same reg-
ulations as the officers of the State are now authorized to levy and sell
under other executions.] (q.)
§791. Lien for taxes, how enforced. [There shall be a lien on real estate Q 7 „ Aete .£ f
within such town or village, for the town or village, taxes assessed
thereon, and for all other fines and penalties assessed, or imposed upon
! the owners thereof by the authorities of such town, or village, from
| the time the same are assessed or imposed, which shall have a priority
over all other liens, except the lien due the State and county, and may
be enforced in the same manner as now prescribad by law, for the en-
forcement of the lien for county taxes, or in such other manner as the
council may by ordinance prescribe.] (r.)
§792. Powers and duties of mayor. The mayor shall be the chief exec-
utive officer of the town or village ; he shall take care that the orders,
by-laws, ordinances, acts, and resolutions of the council are faithfully
12
178 PART L— TITLE VIL— CHAPTER I.
.
Incorporation of towns and villages.
(s)_ Acts of executed ; he shall be ex officio Justice of the Peace within the town or
is/2, p. 22. yi]j a g e . s hall, within the same, possess and exercise all the powers and
/7 duties, vested by law, as a JustieoofJihe Peace, except that he shall
/?*-/- fe/y.£>£. have no jurisdiction as such in ortmmaT cases. He shall have control
of the police of the town, or village, and may appoint special police
officers whenever he deems it neccessary, and it shall be his duty,
especially, to see that the peace and good order of the town, or village,
are preserved, and that persons and property therein are protected,
and to this end he may cause the arrest and detention of all riotous
and disorderly persons in the town, or village, before issuing his war-
rant therefor. He shall have power to issue executions for all fines,
penalties, and costs imposed by him, or he may require the immediate
payment thereof, and in default of such payment, he may commit the
party in default to the jail of the county in which such town, or. vil-
lage, is situated, or other place of imprisonment in such corporation,
if there be one, until the fine, or penalty or costs shall be paid; but the
term of imprisonment in such case shall not exceed thirty days. In the .
absence from the town, or village or sickness of the mayor, or during
any vacancy in the office of mayor, any one of the councilmen, selected
by the majority, shall perform his duties, and be vested with all his
powers.] (s.~)
§793. Compensation of officers. [The mayor, recorder and marshal of*
(t)_Actsof a the town or village shall each receive such compensation for their ser-
18/2, p. 22. . v j ceg ag ma y k e nxec [ by council, which shall not be increased or di-
minished during their term of office.] (t.)
§794. Jail fees , how paid. [The expense of maintaining any person
(x }\ Act ? ° 1 ' committed to the county jail, or other place of imprisonment, by the
" p ' "" mayor, shall be paid by the town or village, and all costs incurred in
the incorporation of any town or village shall be paid by the same.]
§795. Limits of towns, how extended. [The question of extending the
fv^Actsof limits of such corporations shall be submitted to the people of the dis-
'-, p- — • trict to be included, and if two-thirds of such people vote for exten-
sion, the same may be made.] (v.)
§796. Officers shall not contract, when. [No person holding office under
[vf\ Acts of any municipal incorporation shall, during the time for which" he was
1S72, p. 22. e } ec fc ec i or appointed, be capable of contracting with such corporation
for the performance of any work which is to be paid for out of the
treasury, nor shall any person be capable of holding or having any
interest in such contract, either by himself or by another, directly or
indirectly.] (w.)
Construing this section^n reference to the mayor of Macon : 60 Ga., 227.
§797. Municipal debts, hoiv created, [No city, town or village shall
(x) Acts of create any debt except the ordinary expenses of said city, town or vil-
1872, p. 22. l a ge, unless by a vote of a majority of the citizens of said city, town
or village, at an election to be held specially for that purpose.] (x.)*
§797. (a.) Other powers, with exceptions. The council or board of com-
Actsof 1876, missioners of any town or village, established at any time prior to Feb-
p. 26. ruary 25, 1876, or subsequent thereto, may exercise all the powers
whatever conferred by section 789, upon a council of a town or vil-
lage incorporated under the provisions of the same; and the charters of
such towns or villages contained in the several Acts of the Legislature
relative thereto, are hereby amended by the express repeal of all pro-
visions inconsistent herewith, whether the same relate to license to
retail liquors, the levy and collection of taxes, or the imposition of
fines for violations of legal ordinances : Provided, that nothing hef ein
-How is this section affected by Const., of 1877, Art. 7, Sec. 7?
PART L— TITLE VII.— CHAPTER I. 179
Incorporation of towns and villages.
:ontained, shall operate to repeal any local provisions heretofore made
n any Act of the General Assembly of this State, relative to any town
tr village, requiring the consent of any number of citizens as a con-
Lition precedent to the granting license to retail liquors, or the requir-
ng the submission of the question of granting such license to quali-
ied voters of such town or village, or prohibiting the granting of such
icense. But the council or board of commissioners of such town or
dllage shall have the power to grant such license, subject to such
pecial provisions, and to regulate the amount of the fee or tax to be
>aid for such license (in all cases where such licenses may be lawfully
;ranted) : Provided, that such fee or tax for license shall, in no case, be
educed from the minimum amount fixed by such special laws; but the
ame may be increased by such council or board of commissioners.
; §797. (b.) Provisions extended, surrender of charters. The municipal au- /p^ -j*^ ///^
horities of any town or village heretofore established by Act of the Gen-*
ral Assemby of this State, may, by petition to the Superior Court of the
ounty, surrender the charter of such town or village, and have such
own or village incorporated by order of said Court, and thereafter all
he provisions of said Act shall be deemed applicable to such town or
rillage, and in case said municipal authorities shall desire merely to
mend the charter of such town or village, and not surrender the same,
t shall be lawful for said Court to pass an order upon such petition,
aaking such amendments ; but in no case to confer upon said munici-
pal authorities rights, powers, or privileges not conferred in said Act.
Section cited : 62 Ga., 425.
§797. (c.) Exceptions. None of the provisions of this and the preced-
ng sections, nor of the Act of 26th August, 1872, embodied in section
74 to 797, shall be deemed applicable to any community, town or village
within one mile of the corporate limits of any city in this State.*
^•The law relating to the subject of this chapter, is somewhat confused by the various statutes
r hich have been passed thereon. By Act of 1874 p. 44, the provisions embodied in sections 774 to
)7 inclusive, were extended to towns theretofore established, with certain exceptions, and the Act
f 1874, p. 46, amended the caption of the Act of 26th August, 1872, the provisions of which are
mtained in the sections 774 to 797, before mentioned.
180
PART I.— TITLE VIIL— CHAPTER I.
Article 1. — Property exempt.
TITLE VIIL
PUBLIC REVENUE.
CHAPTER I.
TAXATION BY THE STATE.
Article 1.-
Article 2.-
Article 3.-
Article 4.-
Article 5.-
Article 6.-
Article 7.-
Article 8.-
Article 9.-
Article 10.-
- Property Exempt.
-System of Taxation, Persons and Property Taxed.
-Taxes on Banks, Railroads, etc.
-Taxes, how Returned and Collected.
-Proceedings against Delinquent Tax Payers.
-Delinquent Collectors and Receivers, etc.
-Tax Receivers.
-Tax Collectors.
-Compensation of Collectors and Receivers.
-Miscellaneous Provisions.
ARTICLE I.
PROPERTY exempt.
§798. Property exempt from taxation. The following described property
<Const. of shall be exempt from taxation, to-wit : All public property, places of
Sec%fpar 7 ' religious worship, and places of burial, all institutions of purely pub-
2 and' 4. lie charity, all buildings erected for and used as a college, incorporated
Acts of 1878 academy, or other seminary of learning, the real and personal estate of
-9, p. 33. an y public library and that of any other literary association used by,
or connected with, such library ; all books, philosophical apparatus,
paintings and statuary of any company or association kept in public
hall, and not held as merchandize or for purposes of sale or gain : Pro-
vided, the above described property so exempted be not used for pur-
poses of private or corporate profit or income, and all laws exempting
property from taxation other than the property herein enumerated, shall
be void.
• Construed, imports and exports are exempt: 60 Ga., 66-9. Masonic Lodge is exempt :
53 Ga., 93. Referred to : 53 Ga., 93.
General Note. — As to railroads: 54 Ga., 402, 424, 428.
U. S. property : 34 Am. R., 155. Church property :*27 Am. R., 650; 31 Am. R., 224;
34 Am. R., 597. Sunday school rooms exempt: 32 Am. R., 417. School houses: 22
Am. R.. 187, 504; Cooley Tax., 130, 145; Burrough's Tax., 134. Land of a county used i
for county purposes is exempt from all taxation: 27 Am. R. 159, and note, 161. Cem- ]
etery, portion used for other than burial purposes, not exempt : 29 Am. R., 32
7
^_
ft?-
PART L— TITLE VIII.— CHAPTER I.
181
Article 2.— System of taxation, and persons and property taxed.
ARTICLE II.
SYSTEM OF TAXATION, AND PERSONS AND PROPERTY TAXED.
Section.
799. Taxable property, what.
800. Printing presses, etc.
801. Bonds, notes and other obligations.
802. Lands held by warant or ungranted.
803. Land, etc., held by non-residents.
804. Taxable property, assessments'.
805. Assessments, when and by whom.
806. Amount of taxes to be assessed.
807. Tax, in what funds to be paid.
808. Default and insolvent list.
809. Specific taxes, items enumerated.
809. (a.) Special tax on liquor dealers and its
collection.
809. (b.) Liquor dealers shall register.
809. (C.1 Ducy of Ordinary.
809. (d.) Comptroller-General shall keep reg-
ister.
809. (e.) Tax collector shall keep county reg-
ister.
809.
809.
809.
809.
Section.
809. (f.) Dealer shall pay tax to tax collector,
when,
(g.) Penalty for failure to register and
pay tax.
(h.)* Liability of tax collector, who fails
to inform,
(i.) Comptroller to furnish register, etc.
(j. i Collectors shall report tax and remit
same.
809. (k.) Fees of Ordinary and tax collector.
809. (1.) Does not relieve from United States
or local laws.
809. (m.) Grand jury shall inspect registers.
899. m.) Tax on sales of iron safes.
810. Property specifically taxed, etc.
811. Lic?nse to exercise a privilege.
812. Taxes to be paid before other debts.
813. Conveyances and judgments, etc.
814. Person to whom conveyance is made.
§799. (797.) (730.) Taxable property. All real and personal estate, Acts of issi
whether owned by individuals or corporations, resident or non-resi- ~ 2, p '
dent, are liable to taxation, unless specially exempted.
A foreign insurance company taxed by means of license required : 50 Ga., 537. City
may exempt property from taxation : 60 Ga., 93 ; 54/330. Income is not property : 6o
Ga., 93-100 ; 8/23. Promissory note taxable according to its market value : 47 Ga., 382-4.
Ko tax permitted on State bonds: 60 Ga., 505; 50/387. A municipal corporation can
tax the property and business also: 62 Ga., 645-50; 60/133. Also as to a tax on tbe
gross value of sales : $2 Ga., 645-650.
Exemption must be clear; 10 How., 376; 18 Wall., 206; 20/46; 21/492; 22/527, 215;
9 0., 348 ; Cooley Tax., 146.
§800. Tax on printing presses and material. [Printing presses, types, and (a) Acts of
Other printing material shall be assessed and taxed as other personal 1872 ' p- 76 '
property.] (a.)*
§801. (798.) (731.) Bonds, notes, etc., of non-residents ; bonds of other States. Act of 1858,
Bonds, notes, or other obligations for money, on persons in other States, p " 105 "
or bonds of the United States, or of other States, or bonds of corpora-
tions of other States, and shipping, are the subjects of return and taxa-
tion in this State.
Bonds owned by citizens of Augusta on corporations or individuals out of the city :
50 Ga., 387-392. Bonds, notes, etc., follow the situs of the creditor: 64 Ga., 799. The
law as set forth in this decision is now different under this section : 33 Ga., 113.
11 Am. R., 132 ; 19/546; 10 O., 491.
§802. (799.) (732.) Ungranted, lands and stock corporations. All lands held Acts of 1851
(under warrants and certificates, but not granted, are liable to taxation ; ~ 2, p ' m
land all moneyed or stock corporations, unless exempted or differently
provided for in their charters, are liable to taxation upon such capital
|stock as other property.
§803. (800.) (733.) Non-resident owners of property liable. Lands or other
property belonging to citizens of the United States, not resident of this
State, cannot be taxed higher than the property of residents, but all
the property of such non-residents, whether their property be real or
(personal, in this State, must pay taxes on the same herein.
, Discrimination as between property of residents and non-residents: 25 G a., 610.
[NTon-residents are not required bv our law to pay taxes on notes held by them on citi-
zens of this State: 44 Ga., 651. Section cited and construed : 50 Ga., 392.
§804. (801.) (734.) Taxable property to be assessed, by whom. All property Acts of i85i
*>r other thing of value, subject to taxation, must be given in by the tax- -2, p * 291 '
Ipayers as hereinafter set forth, at its fair market value, and must be
(taxed according to its value on an - assessment to be made by the Gov-
*The exception iu this section declared void by Const., of 1877, Art. 7, Sec. 2, par. 4.
182
PART I.— TITLE VIII.— CHAPTER I.
Article 2. — System of taxation, and persons and property taxed.
ernor, which must not exceed one-eighth of one per cent, per annum
without the assent of the General Assembly.
According to its value under the Constitution of 1868 : 41 Ga., 22. The Constitutor
of 1868 authorizing a special tax on liquor for certain purposes, this tax was not objec
tionable to the ad valorem provisions: 42 Ga., 416. A tax on the occupation of a retai
dealer of liquor, held valid : 42 Ga., 596-9. City tax on the shareholders of stocks ii
banks should be ad valorem: 47 Ga., 562-3. Promissory notes or other debts : 47 Ga.
384.
Acts of 1851
-2, p. 291.
Act of 1804,
C.tp. 1051.
Acts of 1851
-2, p. 291.
Act of 1847,
C. p. 1079.
Acts of 1851
-2, p. 292.
Act of 1804,
C. p. 1044.
Acts of 1843,
p. 1075.
Acts of 1851
-2, p. 289.
Acts of 1860,
p. 60,
§805. (802.) (735.) Assessment,whentobemade. Such assessment must b*
made each year, as soon as the value of the taxable property is substan-
tially known by the Comptroller-General, who shall assist the Governoi
in making the assessment, and immediately send written or printec
notices to each tax collector, of the Governor's order, and also publish 2
copy thereof for the space of thirty days in some public gazette at th*
seat of government.
§806. (803.) (736.) Amount of taxes to be assessed. The amount of taxes
assessed shall not exceed the actual annual wants of the State govern
ment, exclusive of the commissions of collectors and receivers, and anj
other expense that may be lawfully incurred in assessing and collect
ing them.
§807. (804.) (737.) In ivhat funds taxes are to be paid. Taxes must be paic
in gold or silver, or in the bills of such banks as pay specie promptly
unless spscially excluded by law or otherwise directed by the Governor
§808. (805.) (738.) Default and insolvent list. In netting the digest
the default list shall be deducted for the receivers, and the insolven
list for the collectors.
§809. (806.) (739.) Specific taxes. Besides the ad valorem tax, the fol
lowing specific taxes shail be assessed per annum, and estimated ii
fixing the rate per cent. :
1. Practitioners of law, physic and dentistry, five dollars each.
A law firm should be required only one tax of: 53 Ga., 616.
Daguerreian,2,mbrotype, photographic, and similar artists, five do]
1870, p. 432.
3. Every person between the ages of twenty-one and sixty years, on
(a) Acts of dollar: [Provided, that all persons blind, and not having in their owi
1869, p. 162. -rig]^ taxable property exceeding in value five hundred dollars, shal
M Acts of be exempt from the payment of poll tox ; and provided, also, that it shal
henceforth be unlawful for any county, city or corporate authority t
assess or collect any capitation tax whatever, except street tax, an'
that only after opportunity to work the streets.] (a.)
4. To carry on the business of an auctioneer, ten dollars.
5. To keep a pool or billiard table for public play, twenty-five dollar!
6. To keep a bagatelle table for public play, ten dollars.
7. To keep a ten-pin alley, or alley of like kind, for public play, te
dollars.
8. To keep any other table, stand or place, for any other game or pla^
with or without a name, unless for exercise or amusement only, anj
not prohibited by law, ten dollars.
r — 9. To keep a public race track, fifty dollars.
JBfe-r^ ^^^J3^jj&*s^** i ~' §809. (a.) Special tax on liquor dealers, and its collection. The tax Act (
/f2-~$. $*~Act&oi 1880 1880, provides for levying a specific tax of twenty-five dollars upon a
' -1, p. 38. d ea i ers f spirituous or malt liquors, and intoxicating bitters, whethcj
w * • dealing in either or all thereof, tor each place of business, in each count]
where the same are sold, and the collection of such tax is provided fcj
in the sections following.
§809. (b.) Liquor dealers shall register. From and after the first day <
April, 1882, each person or firm desiring to engage in the sale of spiri
uous or malt liquors, or intoxicating bitters, or in either or all of then
PART L— TITLE VIII.— CHAPTER I. 183
Article 2.— System, of taxation, and persons and property taxed.
in this State, shall, before he or they commence the sale of such spirit- Acts of 1880
uous or malt liquors, or intoxicating bitters, go before the Ordinary " 3 ' P* 88 -
of the county in which he or they propose to sell said spirituous or
malt liquors, or intoxicating bitters, and register his or their names,
as such dealer.
§809. (c.) Ordinary shall give notice of registration. As soon as the Acts of isso
dealer has registered, as provided in the preceding section, it shall be"*' 5 * 36 -
the duty of the Ordinary to notify the Comptroller-General of the State
and the tax collector of his county, of the fact that such person, or the
members of such firm, have registered his or their names as a dealer in
spirituous or malt liquors, or intoxicating bitters.
§809. (d.) Comptroller shall keep register. It shall be the duty of the Acts onsso
Comptroller-General to keep in his office a book, to be known and styled -1 « p- 3m -
as a register of "Liquor Dealers," and it shall be his duty, when notified
by the Ordinary, as provided in the preceding section, of a person or the
members of such firm, registering for the purpose of engaging in the"
sale of spirituous or malt liquors, or intoxicating bitters, to enter the
name of such person, or the members of such firm in said book, said
entries to be made in places set aside in said book of registry, for each
county in this State.
§809. (e.) Tax collector's duty. It shall be the duty of the tax collector, Actso f isso •
as soon as he is notified of the register*? ng of a person or the members of"" 3, p " S8,
a firm, as a dealer in spirituous or malt liquors, or intoxicating bitters,
as provided in section 809 (c), to enter the name of said person, or the
members of such a firm, in a book to be known as a county register of
liquor dealers, said book to be furnished the tax collector as hereinafter
provided.
§809. (f.) Dealer shall pay tax upon registration. Whenever a person or Acts of las' 1 ,
members of a firm register, as provided in section 809 (b.), it shall be the _1, p b8 -
duty of such person, or members of such firm to pay to the tax collector
of the county where such registry is made, the entire amount of the
tax imposed for that year by the General Assembly in the general tax
Act, before commencing to do the business for which he or they regis-
tered.
§809. (g. ) Penalty for failure to register, and pay tax. Where a person Acts of 188O
or members of a firm register as a dealer in spirituous or malt liquors, -1 > p- 4S
or intoxi 'ating bitters, and fail or refuse to pay the tax as provided in
section 809 (f.), or where a person or members of a firm commence to sell
spirituous or malt liquors, or intoxicating bitters without complying
with the requirements of section 809 (b.), such person, or members of
such firm shall be guilty of a misdemeanor, and it shall be the duty of
the tax collector to give information against such person, or members
of such firm so violating the provisions of the preceding sections, to the
Solicitor-General of the Circuit in which his county is located, and it
shall be the duty of the Solicitor-General to draw up a bill of indictment
against such person or members of such firm, and when there is a true
bill found by the grand jury, he shall prosecute such person or mem-
bers of such firm so indicted. On conviction of the offender or offenders,
he or they shall be punished as prescribed in section 4310 of this Code.
§809. (h.) Liability of tax collector who fails to inform. Whenever a tax Acts of i860
collector fails or refuses to give the Solicitor-General the information ~ lj v - 48 -
provided in section 809 (g.), it shall be the duty of the Governor, upon
proper proof being made before him of such failure or refusal by the
tax collector, to give information to the Solicitor-General to order the
Comptroller-General to issue fi. fa. against such tax collector and his
bondsmen for the amount of the tax which is due by the offender who
has violated the provisions of the preceding sections as aforesaid, and
against whom the tax collector has failed or refused to inform.
184 PART I.— TITLE VIII.— CHAPTER I.
Article 2. — System of taxation, and persons and property taxed.
§809. (i.) Comptroller to furnish register, etc. It shall be the duty of
Acts of 1880 the Comptroller-General to furnish each Ordinary and tax collector
-i, p. 43. w ith a book, upon which they shall enter the name of each person or
members of a firm registering as a dealer in spirituous or malt liquors,
or intoxicating bitters. In the case of the Ordinary, it shall be his
duty in registering the same to give the name, place of business, and
when registered. In case of the tax collector, it shall be his duty to
enter the name of the person or members of a firm registered with the
Ordinary, date when notified by the Ordinary, (as provided in section
809, (c.) date of when tax was paid him, amount of tax paid, and date
of remitting same to the Treasurer of the State.
§809. (j. ) Collectors shall report tax and remit same. It shall be the duty
Acts of 1880 of the tax collector to make quarterly reports of the amounts collected
-i, p. 43. f rom dealers in spirituous or malt liquors, or intoxicating bitters, to
the Comptroller-General under oath, to be administered by any duly
. qualified officer, and it shall be the duty of the tax collectors to remit
to the Treasurer of the State the amounts of their collections, less com-
missions, at the time of forwarding their quarterly reports to the
Comptroller-General.
§809. (k.) Fees of Ordinary and collector. The commission to be
Aots of 1880 allowed to the tax collectors for collecting these special taxes shall be the
-l, p. 43. same percentage as is now allowed them by section 936 for collecting
the general tax in their respective counties, upon the amount collected,
and that the fee to be allowed the Ordinary for registering the name of
the dealer in spirituous or malt liquor, or intoxicating bitters, shall be
the same as now allowed by section 3694 of the Code for recording an
official bond : Provided, said fee is paid by the party registering.
§809. (1.) Does not relieve from United States or local laws. No require-
Acts of 1880 ment of sections 809 (b.) to 809 (m.), inclusive shall be construed to
-l, p. 43. relieve those so registering from any requirement imposed upon liquor
dealers by the laws of the United States, nor from any local tax or pro-
hibitory law in reference to dealers in spirituous or malt liquors, or in-
toxicating bitters.
§809. (m.) Inspection of registry by grand jury. It shall be the duty
Acts of 1880 of the Ordinary and tax collector to lay before the grand juries of their
-l, p. 43. respective counties, at the fall term of each meeting of their Superior
Courts, the books of registry kept by each of them, and it shall be the
duty of the grand jury to inspect said registers and compare, one with
the other, and having made such inspection, if any discrepancies are
found in said books, or if they find there are any dealers in spirituous
or malt liquors, or intoxicating bitters, doing business in their county
not reported, or registered on such books, it shall be their duty to re-
port such discrepancy to the Comptroller-General and it shall be his
duty, if the discrepancy is found to be in favor of the State to issue
fi. fa. against said collector for the amount so reported by the grand
jury as being due the State, and if a person, or the member or members
of a firm engaged in this sale of spirituous or malt liquor, or intoxicat-
ing bitters, have failed to register, or havin; - registered have failed to
pay, it shall be their duty to indict such persons as provided in sec-
tion 809 (g.) of this Article the penalty, on conviction, to be as pre-
scribed in section 4310 of the Code.
§809. (n.) Tax on dealers in iron safes. Each iron safe company selling
Acts of 1880 or dealing in iron safes of home or foreign manufacture, by itself or
-l, p. 43. j^ s a g en f; j n this State, and all dealers in iron safes, selling or dealing
in iron safes of home or foreign manufacture, shall pay the sum of two
hundred dollars for each year, or fractional part thereof, to the Comp-
troller-General at the time of commencement of business for each year,
and all iron safes belonging to such companies, their agents or dealers,
PART L— TITLE VIII.— CHAPTER I.
185
Article 3.— Taxes on banks, railroads and other corporations.
in possession of such companies, agents, dealers or others, shall be
liable to seizure and sale for the payment of such tax.
§810. (807.) (740.) Property specifically taxed. Wnere persons are taxed
specifically, for keeping a billiard or pool table, bagatelle table or ten-
pin alley, they need not give in the value thereof.
§811. (808.) (741.) License when necessary. No assessment or payment
of tax to the State is to exonerate the person from taking out a
license from the county, or city, or incorporated town, in cases where
they are required by law so to do.
Where a physician is licensed by authority of the State, the city of Savannah can-
not require him under penalty to take out license before he can practice his profes-
sion : 36 Ga., 460. But the practice of his profession in this city is the subject of taxa-
tion: 36 Ga., 460. See also note to section 1422. A license tax by a city on a foreign
insurance company with an agency in the city : 50 Ga., 537.
§812. (809.) (742.) Taxes to be first paid. Taxes shall be paid before Act of 1801,
any other debt, lien or claim whatsoever, and the property returned or p^js°^s
heid at the time of giving in, or after, is always subject, 2553.
Taxes due the State were a lien on the property of the debtor, formerly, from the first
of Jauuary : 8 Ga., 479 In this case was a lien from the first of April, and sale by the
assignee in bankruptcy did not divest the State's lien for taxes : 46 Ga., 412. Nor does a
sale of land under a decree of the Circuit Court of the United States divest the State's
lien for taxes: 63 Ga., 486-7. Nor is the city's lien for taxes divested by a sale for
purchase money in a matter transpiring in the city of Atlanta : Freeman vs. Mayor,
etc., of Atlanta, Pamph. Feb., 1881, p. 33.
3 O., 424 ; 6 C. L. J., 139 ; Cooley Tax.. 305 ; Burrough's Tax., 269.
§813. (810.) (743.) Conveyances and judgments to avoid payment of taxes Act of i804 9
void. All deeds of gift, mortgages, sales and assignments of property c - p - 105 °-
of any kind, made to avoid payment of taxes, or judgments procured
to be rendered for the same purpose, are null and void.
§814. (811.) (744.) Donee, etc., property liable. The person holding Act of 1804>
such property, or to whom such conveyance may be made, is liable for c. p. 1050.
such taxes, and the property also, whenever found, no matter in whose
possession it may be.
ARTICLE III.
TAXES ON BANKS, RAILROADS AND OTHER CORPORATIONS.
Section.
815. Banks, etc, how taxed.
815. 1 a.) President to make return.
815. (b.) Stock subject to tax fi. fa.
815. (c.) Taxes, by whom paid.
815. (d.) List of stockholders to be furnished.
816. Railroads and other corporations.
817. Private banks and bankers.
818. Special provisions for railroads.
Section.
819. Tax on non-resident roads.
820. Foreign banks, agents.
821. Foreign insurance companies.
822. Express companies.
823. Lotteries.
824. Illegal sale of lottery tickets.
825. How contested by defendant.
§815. (812.) (745.) Tax must be assessed on shares, not capital. No tax Act*tf
shall be assessed upon the capital of any bank or banking association, p- 138 -
organized under the authority of this State, or under the authority of
the United States,, and located within this State ; but the stockholders
in such banks or banking associations shall be taxed upon the value of
their shares of stock therein in the county, town or city where such
bank or banking association is located, and not elsewhere, whether
such stockholder resides in such count}^, town or city or not, but not at
any greater rate than is of may be assessed upon other moneyed capital
in the hands of individuals in this State.
3 How., 133; 8/73; 1 Bk., 436; 2/620; 4 Wall., 244; 6/594, 611; Cooley Tax., 165, 273,
388, 392.
§815. (a.) President to make return on oath. The president or chief
officer of each and every bank or banking association, organized under
186 PART L— TITLE VIII.— CHAPTER I.
Article 3. — Taxes on banks, railroads and other corporations.
Acts of 1876, State authority, or under National authority as aforesaid, and located
p. 138. j n ^'g gt a -te, shall be required to return on oath, under the regulations
prescribed by law for tax returns, all the shares of stock of the stock-
holders of such bank or banking association, whether resident or non-
resident, at the value of such shades of stock, to the tax receiver of the
county where such bank or banking association is located, to be taxed
for State and county purposes as hereinbefore provided, and in default
thereof, said tax receiver shall proceed in the manner prescribed by
section 854 of the Code, to assess a double tax upon the snares of stock
not returned as aforesaid.
§815. (b.) Stock subject to taxfi.fa. The shares of stock of any stock-
Acts of 1876, holder in any bank or banking association, organized as aforesaid, may
p. 139. -fa* sold for the payment of taxes due thereon, whether upon a return
by the proper person, or upon an assessment by the tax receiver, by
the tax collector of the county where such bank or banking association
is located, in the manner provided by law for sales of personal prop-
erty for unpaid taxes.
§815. (c.) Cashier of the bank must pay the taxes. It shall be the duty
Actsofi876, of the cashier of such bank or banking association, to pay the taxes
! assessed, by virtue of the foregoing provisions upon the shares of stock
of the stockholders of such banks or banking association, to said tax
collector, and in default thereof, said tax collector shall collect the same
by execution issued as now provided by law, and by the sale of said
shares of stock as above provided.
§815. (d.) The president and cashier to furnish list of stockholders. The
Acts of 1876, president and cashier of every bank or banking association above de-
p. 139. scribed, shall be required to furnish, for the inspection of said tax re-
ceiver of the county in which such bank or banking association is
located a correct list of the names and residences of all the sharehold-
ers in such bank or banking association, and the number of shares held
by each; and any president or cashier of such bank or banking associa-
tion, failing or refusing to furnish said list of names and shares to
any tax receiver authorized hereby to demand the same, (and demand-
ing the same), shall be guilty of a misdemeanor, and on conviction
thereof, shall be punished as prescribed in section 4310 of the Code.
^^^ ^£^ ++4*~c*~-, §816. (813.) (746.) Tax on railroads and other corporations. The several
Eg/ /ff ~j Acts of 1874, railroads and other incorporated or unincorporated companies of every
Ej/V. j*/ ' Act of 1850, kind, except banks which are not exempt by their charter otherwise,
^ . ; Z^ c. p. 1079. ' or for which there is not a different method of taxation specially pre-
U£&~**44sft-- _ 2 p _ m scribed, pay the same rate per cent, upon the whole amount of their
L *' /f?~ ^* ffi jsjffi) °? 1 n 853 capital stock paid in as is levied on other capital, together with the
J^K^yO'^fC^M, ' same rate per cent, upon their net annual profits: [Provided, that this
^c^L^6t>^.nm, c ^ii. section shall not be so construed as to include loan and building as-
/f<?j£ x sociations, but the same are hereby declared exempt from taxation
upon their capital stock and net annual profits.] (a.)
What is capital stock and liable to taxation : 8 Ga., 486. Property of the Rome
Railroad in the city of Rome necessary to conduct its business is part of its capital
stock, and exempt under its charter from city tax as property: 14 Ga., 275; 62/473.
Capital stock exempt by charter, but other property taxed as ordinary property: 40
Ga.,646; 44/388. What taxes upon the Georgia Railroad and Banking Company are
illegal according to the terms of their charter: 26 Ga., 651. By the Act of 1852, the
city of Augusta could tax the Insurance and Banking Company on their "capital
stock," and not the company as a corporate body: 37 Ga., 620-2. Railroad tax cases:
54 Ga., 401, 408, 423, 430 ; 60/269.
Tax on Railroads: 7 Wall., 262; 15/284; 18/206; 22/527, 215; 6 O., 499; 7/697;
9/348; 12/273; 13/1, 417; 24 Am. R., 511; Cooley Tax., 60, 135, 150, 273.
Act of 1830, §817. (814.) (747.) Private bankers, etc. The provisions of the pre-
Act of°i83t ceding sections apply to private bankers, brokers, or exchange mer-
c. p. iocs. ' chants.
PART I.— TITLE VIII.— CHAPTER I. 187
Article 3. — Taxes on banks, railroads and other corporations.
§818. (815.) (7 '48. ) Railroads , when to pay one-half of one per cent. The ActsofisM,
several railroads, by whose charters a higher tax is forbidden, and such p * 0j "
as are now or may hereafter be in operation that do not pay a dividend
exceeding six per cent., shall pay only one-half of one per cent, upon
the net annual income of each, until they pay a dividend of eic;ht per
cent, per annum, in which shall be included the reserved fund, at
which time they are to be taxed as other capital.
§819. Non-resident railroads, how taxed. [All railroad companies loca-(a) Act of
ted in other States, and having a terminus, or any part of its road infg^ '
this State, shall be taxed as follows : If such railroad companies have a
terminus in this State, they shall be liable to pay taxes on all their
property in this State, except their right of way and track, including
bridges ; and if they have no terminus in this State, such railroad com-
panies shall pay a tax upon their net earnings as railroad companies of
this State, in the proportion that the length of the road in^his State
bears to the whole length of said road : Provided, if in any case the tax
upon the net earnings of such companies shall amount to a greater sum
than a tax upon their property, then said companies shall pay the tax
on their earnings.] (a.)
18 Wall., 206; 21/492. The stocks and bonds of an inter-State railway are liable to
taxation by any State in which it is situated in proportion to the length of the voad in
such State : 5 Am. R., 341. The lien of the State for taxes upon the property of a rail-
road company, rightfully in the custody of the law, is prior to all other liens whatso-
ever, except the lien of judicial costs : 3 Woods, 434.
§820. (816.) (749.) Agents of foreign banks and brokers. Every agent Act of iso4,
of any foreign bank or individual not a citizen of this State, doing c.p. 1047,
business herein, with or without an office, or through a citizen of this Act of i845 r
State or other person, shall pay the same rate of tax as is imposed upon ^'J f ]l^
the chartered banks upon one-third of the highest amount of loans or c.p. lost. '
paper discounted, or exchange purchased by him and running to ma-^p. ^ 855
turity at any one time during twelve months immediately preceding Actsofi858,
such returns, together with the same rate per cent, upon the net an-
nual profits of the agency.
§821. (817.) (750.) Foreign insurance companies. All insurance com- Actsofisss,
panies out of this State, doing business herein, shall pay one per cent, p- 104 -
upon premiums received.
iMty tax on : 50 Ga., 537.
3 0., 116; Cooley Tax., 393.
§822. (818.) (751.) Express companies. Every express company doing
business in this State shall pay a tax of one per cent, upon the gross p . 105.
amount of their profits for each year on business done at offices in this
State*
§823. (819.) (752.) Managers of lottery. Each manager of any lottery, Actsofl858
if authorized by the laws of this State, shall pay to the State Treasurer P . 104.
one thousand dollars annually, free of all costs of collection.*
§824. (820.) (753.) Illegal sale of lottery tickets. If any person makes Actof 1828>
affidavit that any one is selling lottery tickets without the authority of c.p. 728.
the laws of this State, the tax collector of any county shall issue a fi. fa.
for the sum of one hundred dollars for each act, sworn to against the
offending person, as tax executions are issued.*
Penalties under the Act of 1833 cannot be enforced by an indictment : 29 Ga., 616.
§825. (821.) (754.) Fi. fa. may be contested. The defendant may con-
test the collection of such process as defendants in ordinary^, fas. may.f
Injunctions: 59 Ga., 805-811; 63/352.
General Note on Taxation of Corporations. — Burroughs Tax., 164 ; Cooly Tax., 15,
135, 392; Field on C, ?51u; 4 Pet., 514; 18 Wall., 206; 2 O., 575.
"See Const, of 1877, Art. 1, Sec. 2, par. 4.
fLaws to levy and collect taxes, being generally for one vear onlv, and being in their nature
temporary and changing, are not inserted here. The reader is referred to the Acts of the Legisla-
ture on that subject.
188
PART I.— TITLE VIIL— CHAPTER I.
Article 4. — Taxes, how returned and collected.
ARTICLE IV.
TAXES — HOW RETURNED AND COLLECTED.
/.yv-*-.
Section.
826. Return of banks, etc., how made,
(a.) President shall return,
b.) President must pay.
(c.) Payment, how resisted,
(d.) Returns to be itemized,
(e.) Comptroller assesses, when,
(f.) Collection, how enforced.
826. (g. ) Existing penalties remain.
827. Other returns, to whom made.
828. Mines and farms, where taxed.
Mine or farm on county line.
Non-residents.
Lands, etc., of non-residents.
Returns to Comptroller, how made.
In what funds tax payable.
(a.> Arbitration of differences.
Returns may be by agent.
Oath of agent.
O ith by one of a firm sufficient.
837. Who may administer oath.
838. Evidence of oath.
839. When receiver must assess.
840. Proceedings thereon.
841. Who may complain of returns.
842. Oath of assessors.
843. Defaulting tax payers.
844. Relief against double tax.
845. Defaulter's oath.
846. Blanks, by whom furnished.
846. (a. i Return of lunatics, etc.
Lands, how returned.
How entered in digest.
Digests, when and where filed.
Mistakes, how rectified.
Tax overpaid refunded.
826.
826.
826.
826.
826.
S-i 56.
829.
830.
831.
832.
833.
833.
834.
835.
836.
847.
848.
849.
850.
851.
Section.
852. Before reaching treasury.
853. Doubtful cases.
854. Defaulters double taxed.
855. Double tax on property.
856. Double tax, how avoided.
857. Agent of non-resident liable.
858. When collector must pay, etc.
859. Insolvent list, how allowed.
860. When allowed.
861. On what tax allowed.
862. Copy of list to be retained.
863. List must be recorded.
864. Comptroller may wait for list.
865 When not allowed.
866. New officers excused.
867. When their liability attaches.
86-*. Collector's duty as to digest.
869. Further time may be allowed.
870. Taxes for former years.
871. Estates not liable, when.
872. Land maps to be made.
873. Lands, where and how returned.
874. Wild lands, how returned.
874 (a.) Manner of returning.
874. (b.) Double taxed, when.
874. (c.) Redemption of, when sold.
874. (d.) Liability of officer.
875. Wild lands of non-residents, etc.
875. (a.) Colored tax payers.
875 (b.) Tenant tax payers.
875. (c.) Insurance companies to give
names of agents.
875. (d.) Returns, by whom made.
875. (e.) Returns, shall embrace what.
. c
ft?
r
§826. (822.) (755.) Returns and taxes of banks, etc. The returns of all
banks, railroad, and insurance and express companies, and agents of
foreign companies, authorized in this State, shall be made to the Comp-
troller-General by the first day of May in each year, and the taxes
thereof shall be paid to the State Treasurer by the first day of October
in each year.
§826. (a.) Presidents required to make returns to Comptroller. The presi-
Acts of 1874, dents of all the railroad companies in this State shall be required to
p. 107. return, on oath, annually to the Comptroller-General, the value of the
property of their respective companies, without deducting their in-
debtedness; each class or species of property to be separately named
and valued, so far as the same may be practicable, to be taxed as other
property of the people of the State, and said returns shall be made
under the same regulations provided by law for the returns of officers
of other incorporated companies, which are required by law to be made
to the Comptroller-General.
§826. (b.) The presidents shall pay the taxes assessed. Said presidents
•m Ac }o° f i 874 ' shall pay to the Comptroller-General the taxes assessed upon the prop-
12876, ''882, erty of said railroad companies, and on failure to make the returns re-
cta quired by the preceding section, or on failure to pay the taxes so asssessed
/**&' the Comptroller-General shall proceed to enforce the collection of the
same in the manner provided by law for the enforcement of taxes
against the other incorporated companies before mentioned.
§826. (c.) Tax, how resisted. If any railroad company affected by the
Acts of 1874, preceding sections desires to resist the collection of the tax therein
p. 107. provided for, said company, through its proper officer may, after mak-
ing the return required in section 826 (a.), and after paying the tax
levied on such corporation by the Tax Act for 1873, and continuing to
pay the same while the question of its liability herein is undetermined,
resist the collection of the tax above provided for by filing an affidavit
• of illegality to the execution or other process issued by the Comptrol-
PART L— TITLE VIII.— CHAPTER I. 18<*
Article 4. — Taxes, how returned and collected.
ler-General aforesaid, and stating fully and distinctly the grounds of
resistance, which' shall be returnable to the Superior Court of Fulton
county, to be there determined as other illegalities, only the same shall
have precedence of all cases in said Court as to time of hearing, and
with the same right of motions for new trial and writs of error as in
other cases of illegality, on the part of the Comptroller-General and of
said corporation, in which cases the Comptroller-General shall be rep-
resented by the Attorney-General of the State, or such other attorney
as the Governor may select; and if the grounds of such illegality be
not sustained, the Comptroller-General shall-, after crediting the pro-
cess aforesaid with amount paid, proceed to collect the residue due
under the provisions aforesaid ; and if, at any time during the pend-
ency of any litigation herein provided for, the said corporation shall
fail to pay the tax required to be paid as a condition of hearing, then
said illegality must be dismissed, and no second affidavit of illegality
shall be allowed. Said illegality may be amended as other affidavits
of illegality, and shall always be accompanied by good bond and secu-
rity for the payment of the t'dxfi.fa. issued bj^ the Comptroller-General.
§826. (d.) Returns to Comptroller must be itemized. Whenever corpora- Acts of 1877,
tions, companies, persons, agencies, or institutions, are required by law p ' 126,
to make returns of property, or gross receipts, or business, or income, gross,
annual, net, or any other kind or, any other return, to the Comptroller-
General, for taxation, such return shall contain an itemized statement
of property, each class or species to be separately named and valued,
or an itemized account of gross receipts, or business, or income, as
above defined, or other matters required to be returned, and in case of net
income only, an itemized account of gross receipts and expenditures,
to show how the income returned is ascertained, and such returns shall
be carefully scrutinized by the Comptroller-General, and if in his judg-
ment the property embraced therein is returned below its value, he
shall assess the value, within sixty days thereafter, from any informa-
tion he can obtain, and if he shall find a return of gross receipts, or
business, or income, as above denned, or other matters required to be re-
turned as aforesaid, below the true amount, or false in any particular,
or in anywise contrary to law, he shall correct the- same and assess the
true amount, from the best information at his command, within sixty
days. In all cases of assessment, or of correction of returns, as herein
provided, the officer or person making such returns shall receive notice
and shall have the privilege, withih twenty days after such notice, to
refer the question of true value or amount, as the case may be, to ar-
bitrators — one chosen by himself, and one chosen by the Comptroller-
General — with power to choose an umpire in case of disagreement, and
their award shall be final. ,
§826. (e.) When no return, Comptroller to assess. Incases of failure to Actsofisrr, /yV: 6 1.
make return, it shall be the duty of the Comptroller-General to make p - 127- // '
an assessment, from the best information he can procure, which assess-
ment shall be conclusive upon said corporations, companies, persons,
agencies, or institutions.
§826. (f.) Collection of taxes, how enforced. In all cases of default of Actsofi877,
payment of taxes upon returns or assessments, as provided in the pre- f^Q,'882.
ceding sections, the Comptroller-General shall enforce collections in the
manner now provided by law.
§826. (g.) Usual penalties still of force. Nothing in the three preceding Acts of 1877,
sections shall alter or affect the penalties now provided by law against jf^ 27 "
defaulting or delinquent corporations, companies, persons, or institu- "
tions, referred to therein, or to alter or affect the mode of enforcement
of such penalties, now provided by law.
190 PART I.— TITLE VIII.— CHAPTER I.
Article 4. — Taxes, how returned and collected.
§827. (823.) (756.) Returns, to whom made. All other companies or
persons taxed shall make their returns to the receiver of the respective
counties where the persons reside or the office of the company is located,
except in cases of mining companies and of persons who cultivate lands
in counties not their residence.
§828. (824.) (757.) Returns of mining companies, etc. Mining compa-
Acts of 1855 nies must make their returns in the county where the mine is worked,
-6, p. 275. an( j th oge who have such plantations must make the returns for them,
together with the stock and other property employed thereon, in the
counties where they are respectively situated.
§829. (825.) (758.) Mine or plantation on county line. If there is a
Acts of 1880 mine or plantation on the line between two counties, and in two or
-i, p. 49. m ore connties, the returns shall be made in the county where the im-
provements or most of the improvements are. But any plantation-
whereon the owner resides which shall be divided by a county line, or
/> lines, and said county line, or lines, shall not be definitely ascertained
A and distinctly marked, shall be returned for taxation by the owner in
2 any of the counties in which a part of said plantation may lie, which
the owner may hereafter elect.
^ §830. (826.) (759.) Non-residents included. The.pro visions of the two
preceding sections apply to non-residents who hold such property in
this State.
§831. (827.) (760.) Returns of non-residents, etc. Lands and other prop-
Act of 1840, erty of non-residents must be returned and paid for in the countv where
^ p- AU * the lands or other property are respectively situated.
§832. (828.) (761.) Returns to Comptroller, how made. The returns of
all banks, or companies, or persons, required to be made to the Comp-
troller-General, must be in writing and sworn to by the presiding offi-
cer or agent of a foreign company to be a just, true, and full return of
the capital stock, net annual profits, or other property or effects, for
which said bank or company is subject to taxation by the laws of this
State.
§833. (829.) (762.) Payments, how made. Such payments must be
1807. made in the funds in which taxes may be paid at the State treasury,
free of any expense to the State,
i §833. (a.) Differences arbitrated, how. Whenever the Comptroller-Gen-
Acts ofi878eral shall be dissatisfied with a return for taxation required by law to
-9, p. 166. k e mac [ e to him by any corporation, company, person or institution, and
I shall make an assessment which is not satisfactory to the officer or per-
son making such return, and two arbitrators are chosen, one by the
. Comptroller-General and the other by said officer or person, and if said
arbitrators fail to select an umpire within thirty days after receiving
notice of their appointment, it shall be the duty of the Governor to ap-
point two arbitrators, who with the arbitrator selected by said officer or
person representing the corporation, company or institution, shall de-
termine the question of amount or value, as the case may be, and their
/ award shall be final.
^tU^N*-^ f* a §834. (830.) (763.) Other returns, how made. Returns of other compa-
£~£++ ^^^Zaiies and individuals may be made by themselves or agents to the pro-
a/^Z^^C^ _ per tax receiver, by the first day of July in each year, for property held
^^*^7^-~~ and subject to taxation on the first day of April previously ; and pay-
(**?* * ments to the tax collector by the first day of October in each year.
^ Formerly the first of January was the time : 8 Ga., 479. Section cited and the first
of April fixes the liability to tax for the current year : 51 Ga., 252-4.- An export on
the first of April, 1875, exempt from taxation: 60 Ga., 63-66.
§835. (831.) (767.) Oath of Agent. When any of the oaths of a tax
payer are taken by an agent, there shall also, at the proper place, be
PART L— TITLE VIII.— CHAPTER I. 191 ,\
Article 4.— Taxes, how returned and collected.
serted that he does so as agent for a certain person or persons, or
mpany, naming them.
§836. (832.) (763.) Oath of one of a firm sufficient. Such oath taken Act of 1830,
any one member of a firm or unincorporated company without a c - p - 1008 -
esiding officer, shall be sufficient as to said firm or company pioperty.
§837. (833.) (769.) Oath, before whom taken. They are taken before
e tax receiver, who is authorized to Administer them; but the oath
non-residents, females, absentees, and sick persons, may be written
t in full and taken before an}^ person authorized to administer an
th, and delivered to the receiver, who shall file such oaths in the
ice of the Ordinary.
§838. (834.) (770.) Digest, when evidence. The entry in the digest of §4463.
e tax payer's returns shall be 'prima facie evidence of his having taken
ch oath, and if false, he is guilty of false swearing and is liable to
indicted and to be punished therefor, as prescribed for other cases
false swearing in the Penal Code.
§839. (835.) (771.) In case of false return, tax receiver to assess value. Acts of lm,
ich return shall be scrutinized carefully by the tax receiver, and ifP- 103 -
his judgment he shall find the property embraced in the return, or §925.
.y portion of it, returned below its value, he shall assess the value at
ce or within thirty days thereafter.
§840. (836.) (772.) Subsequent proceedings. If such assessment is not Acts of 1858,
ade by the receiver instanter, he shall give the tax payer notice of his p - 103-
sessment, and in either case it shall be the tax payer's privilege to
ive it left to three disinterested persons, one of whom he shall select,
e other shall be selected by the receiver, and these two shall select a
ird if they disagree, a majority of whom shall fix the assessment.
It is here assumed that the Act of 1804 is still in force in reference to one neglecting
refusing to give in his taxable property, or convicted of fraud or making a false re-
*n, being liable to a penalty one-half to the informer: 20 Ga., 585 That a part of the
jhth section of this Act of 1804 in reference to paying Clerks of the Inferior Court a
e of ten dollars, is repealed : 28 Ga., 85.
§841. (837.) (773.) Property returned below its value. It is the privilege
any tax payer of the county where a return is made to complain to the
ceiver at any time before his digest is completed that any return is
;low the true value of the property; in which case he shall notify the
;rson who made the return complained of if practicable, verbally or
i writing, giving him the name of complainant and the ground of
m plaint, and shall proceed to have a- new assessment in the terms of
ie preceding section.
§842. (838.) (774.) Oath of assessors. Whenever such assessors are Acts of ism,
lied in, they shall take an oath before the receiver to do justice be- p " '
yeen the parties at variance touching the true assessment of the tax
turn.
§843. (839.) (775.) Defaulting taxpayer, how relieved. When a tax payer Act o { H 10t
is been returned as a defaulter and doubly taxed, either by the re- Acts' of i860.
:iver or collector, the Ordinary is authorized to relieve the defaulter of p - 59 -
ie penalty for default at the time said Ordinary allows the collector his
Lsolvent lists, provided that said tax payer shows to such Ordinary by
itisfactory evidence, that either from providential or other good cause
e had not an opportunity to make his returns to the receiver of tax re-
irns, and at the time of such release promptly pays his proper tax and
ie dollar to the collector as his fee, the collector shall promptly inform
ie Comptroller-General of such release and the amount of taxes paid.
§844. (840.) (776.) Defaulters, how relieved from double tax. All defaul- Act of i804,
;rs may at any time, and for the same causes, before the digest is made c * p- 105L
p and ready to be sent to the Comptroller, save the double tax by
kewise giving in to the Ordinary and paying him one dollar, who
192 PART L— TITLE VIII— CHAPTER I.
Article 4. — Taxes, how returned and collected.
shall give a copy of such returns instanter to the receiver, and he shall
enter it in the several digests.
§845. (841.) (777.) Defaulter's oath. The Ordinary, in the cases set
forth in sections 843 and 844, shall require the tax payer to swear to
the cause of his delay, and shall state the same in the copies furnished
the Comptroller or receiver.
§846. (842.) (778.) Comptroller to furnish receivers blank forms. The
Act of 1845, Comptroller-General shall furnish all the receivers of tax returns with
c p. 1076. a s U ffi c i en t number of blank forms to conform to the tax laws, by which
they shall make out their three digests, and each digest shall be of uni-
form, size, and when returned shall be bound and labeled.
§846. (a.) Returns of lunatics, etc., required of tax receivers. The Comp-
Actsofi877> troller-General is hereby authorized and required to require of all tax
p. 114. receivers a return, of each head of a family, (of) all lunatics, epileptics
and idiots, and their sexes, and color, in each county of this State ; and
also of all births and deaths and causes of death.
§847. (843.) (779.) Return of land, how made. In making a return of
Act of 1804, taxable property, the person returning, when making a general return.
Acts of 4 i85i snai l gi ve in each tract or lot of land he may own, specifying its loca-
-2, p. 290. tion by number, district and section, if known, the number of acres,
if known, and its aggregate value, in which must be included the value
of the buildings, machinery, toll bridges, ferries, or other improvements
thereon or appurtenant thereto.
§848. (844.) (780.) Returns, how entered in digests. Such, together with
Acts of 1851 the returns of personal estate and other interests the subject of taxa-
-2, p. 290. tion, must be returned and set down in the digest in separate columns
according to the classification furnished the receivers by the Comp-
troller- General in each year, and their aggregate value carried out, less
the exemptions, such being specified.
§849. (845.) (781.) Number of digests, to whom furnished. The receiver
Acts of 1851 must make out three of such digests in a fair and legible handwriting,
-2, p. 29i. an( j f urri i snj by the first day of August in each year, one to the Comp-
troller-General, one to the Ordinary, and one to the tax collector.
Section cited and the digests are evidence on the trial of an issue as to the payment
of taxes : 47 Ga., 90.
§850. (846.) (782.) Mistakes in, how corrected. If a receiver makes a
Act of 1845, mistake in his digest, it is the duty of the Comptroller-General, with
c. p. 1077. the sanction of the Governor, to correct such mistake by making the
necessary entries in the digest furnished the Comptroller, and must in
writing notify the Ordinary and the tax collector of the county from
which such digest comes of such mistake and correction.
§851. (847.) (783.) Tax overpaid to be refunded when in the treasury. If,
Act of 1845, by reason of such mistake, or from any other cause, a tax payer's money
c. p. io/8. i s in the treasury for a greater amount than he is liable for, of which
such officer is clearly satisfied, he may certify the same to the Governor,
who shall, if he approves, draw his warrant on the treasury in favor of
such tax payer for the proper amount, out of any moneys not otherwise
appropriated.
§852. (848.) (784.) And before reaching the treasury. If such mistake
Acts of 1855 is ascertained before the tax collector has paid the amount into the
s, p. 275, treasury, the Comptroller-General, with the sanction of the Governor,
shall authorize such collector to refund the amount, or if he has not
collected it, to order him to desist.
§853. (849.) (785.) Doubtful cases. When any similar cases arise
Acts of 1855 which are doubtful in the opinion of the Governor, he shall refer the
-6, p. 275. matter to the General Assembly.
§854. (850. ) (786.) Defaulters to be doubly taxed. If a person fails to
make a return, in whole or in part, or fails to affix a value' to his prop-
PART I.— TITLE VIII.— CHAPTER I. 193
Article 4.— Taxes, how returned and collected.
erty, it is the duty of the receiver to make the valuation and assess the Act&ofisia
taxation thereon, and in all other respects to make the return for the Act°o?'iM. r »,
defaulting person from the best information he can obtain, and having Jy^j^&j
done so, he shall double the tax in the last column of the digest against c. p?:i078. '
such defaulters, after having placed the proper market value or specific ^f*! ^ 51
return in the proper column; [and for every year's default the default- Acts of ms
er shall be taxed double until a return is made.] (a.) (a'^ctoi
§855. (851.) (787.) Property not returned to be doubly taxed. If there is 187:3 . p 20 -
taxable property, real Or personal, in a county, that to the satisfaction
of the receiver, when he comes to conclude his digest, is not returned
by any person, and he does not know the owner or possessor, it is his
duty to assess and double tax it, describing it particularly; and the
same power is conferred on the tax collector as to such property, when
not 'assessed, or overlooked by the receiver.
I Section cited : 51 Ga., 454-5.
, §856. (852.) (788.) When defaulters not liable for double tax. If persons
who are required to give in land in the counties where situated fail so
to do, they shall be liable only for the real tax assessed by the receiver
unless they fail to pay the amount by the time required; in which
event the collector shall collect the double tax and issue process therefor.
§857. (853.) (789.) Agents of non-residents. All persons who give in Act of iso-i,
property for persons not resident in the State shall be personally liable c - 1(W7 -
for the taxes, as well as the principal and his property.
Section cited and construed: 51 Ga., 455.
§858. (854.) (790. ) When collectors to pay taxes into treasury and present Act of 1904.
insolvent list. The several collectors must pay into the State treasury AcS'oM«i>5
the taxes of their respective counties by the twentieth day of December -*>> p- JJ6.
of each year, and shall at the same time present their insolvent list, P . 132.
duly certified to have been allowed them by the proper authority.
: §859. (855.) (791.) Insolvent list, by whom allowed. Insolvent lists ofActsofisrs
tax collectors shall alone be allowed by the Ordinary, County Judge, ~ ,,p '
commissioners of roads and revenue, or other tribunals authorized by
law, except grand juries, upon a return of the tax execution with entry
of proper legal officer of " no property."
§860. (856.) (792.) Lists, how allowed. Said official tribunals can, and Acts of 1878
shall, if they have reason from any cause to suspect the return of ' p "
the returning officer to be incorrect in any particular, to cause such fi.
fa. to be sent out again for collection. But before any officer named in
this section shall allow any insolvent list, the officer in whose hands
the tax fi. fas. have been placed for collection, shall make oath that he
has made every effort in his power to collect the same, and that he verily
believes the tax payers on said list have no property out of which
the tax can be collected.
§861. (857.) On what- tax allowed. The proper tribunal in making out Actsofisr,i
such list shall be required to state how much is allowed the collector on p "
account of the State tax, and how much is allowed on the county tax.]
(a.)
§862. (858.) Ordinary to retain copy of list. [When the collector shall 5|L. ActK J of
have his insolvent list credited it shall be the duty of the tribunal al- ActsoWsi'
lowing it to retain a copy of such list and direct the collector to issue pS0 -
executions for the same, and place them in the hands of some constable
of the county for collection, who shall be entitled to the same fees as he
is entitled to for other executions, and two and one-half per centum, and
the balance shall be«paid by the constable. to the .Ordinary, whose duty
it shall be to transmit the same to the treasury.] (a.) - %
§863. (859.) (791.) Disposition of insolvent list. [When such lists arc ;
allowed they must be entered on the minutes of the Court, and the Or-
13
;
194 PART L— TITLE VIII.— CHAPTER I.
Article 4.— Taxes, how returned and collected.
dinary or other tribunal, must furnish the collector certified copies
thereof, stating in the certificates when and by what tribunal allowed.
§864. (860.) Comptroller to wait for insolvent list, how long. [Whenever
i n) Acts of the Comptroller-General shall be satisfied that a tax collector has exer-
m% pp. 80, c - ge( j ( j ue di].ig eilce in his efforts to have his insolvent list allowed,
within the time prescribed by law, the said Comptroller-General shall
be authorized, if in his judgment the public interest will not suffer
thereby, to wait with the collectors fifteen and not exceeding thirty
days for said insolvent list before issuing^, fa. for the same.] (b.)
§865. (861.) (793.) When not. They shall not, under any circum-
Actof 1812, stances, be allowed or credited with such lists after executions are issued
j. p. 1059. against them for taxes, until they go to the Comptroller-General and,
settle fairly and fully with him.
§866. (862.) (794.) When time shall be granted to receivers and collectors.
Act of 1843. The time by which digests shall be completed and the taxes paid does
j. p. 10/4. no £ apply to receivers and collectors who have not been in office long
enough to make such compliance, but in all such cases such officer must
respond to the requirements of the Comptroller-General.
§867. (863.) (795.) Newly elected receivers and collectors. Such officers
are not liable for the penalties fixed for those regularly elected, until
the time allowed by the Comptroller-General has expired, unless they
have been so long in office as would have been sufficient for the regular
officers.
§868. (864.) (796.) Collector to make a schedule of defaulters. It is the
vets oH857, duty of the collector to examine the digest of the receiver, and if he
;>. i3i. knows of any default not entered, to make a schedule of such in the
same manner as done by the receiver, and of any other that he may
then or afterwards learn, and of their property, and assess a double tax
in the same manner the receiver is allowed to do, one copy of which
shall be furnished to the Comptroller-General to add to the digest in
his office, and another to the receiver, who shall likewise correct his
digest.
§869. (865.) (797.) Comptroller may allow further time. And in other
vet of 1843, cases where any unexpected obstacles occur to completing the digest or
• p - 1074, paying over the taxes within the time prescribed, it is in the discretion
of the Comptroller-General to allow further and sufficient time.
§870. (866.) (798.) Taxes for former years, how returned and collected. Re-
vet or 1813, ceivers and collectors are required to receive the returns and to collect
. p. loco. .|.j ie ^ axeg thereon for former year, when any person or county are in de-
fault, which taxes shall be assessed according to the law in force at the
time the default occurred, and shall be so specified in the digest.
As to taxes due under the relief law : 43 Ga., 538-547. Overruled by : 16 Wall. U. S.
Supr. Ct., p. 315.
§871. (867.) (799.) Estate not liable to default, when. The estate of any
v?t of 1843, person shall not be liable for default when said person may have died
• p - 107d - before the time expired for giving in taxes for the year, and the repre-
sentatives or any heir may give in the same, and in any event, for that
year, such estate shall not be liable to double tax.
§872. (868.) Secretary of State to furnish maps. [The surveyor-general
o Acts of is authorized and required to have published a sufficient number of
m, p. io6. ma ps of those lands which have been surveyed as will enable him to
furnish each receiver with two, embracing all the lands in his county,
and one to file in the clerk's office of the Superior Court.] (a.)
[Sees. 869, 870, 871, 872, 873, 874, 875, 876, 877 and 878, repealed by
Act of 1872, p. 78.]
§873. Taxable lands, Iioio and when returned, [All 'lands in this State
subject to taxation, whether improved or unimproved, shall be returned
by the person or persons owning the same, his, her or their agent or
PART L— TITLE VIII.— CHAPTER I. 195
Article 4. — Taxes, how returned and collected.
jattorney, to the receiver of the county where the land lies, except as fa) Actsof
iprovided in the next section. And it shall be the duty of the receiver l F n }\ ?■„]];
!to require all persons making returns ot lands in his county, to return Feb., ihts.
the same by district, number and section, if the lands have such desig-
nation, and when lands have no such designation, then by such de-
scription as will enable the receivers to identify them. Receivers are
prohibited from receiving any returns of land which do not so designate
them. And the Comptroller-General is prohibited from allowing any
receiver compensation or per centage for his services, who receives re-
turns in any other manner.] (a.)
§874. Comptroller to furnish list of wild lands. The Comptroller-Gen- Acts of i scl-
eral of this State shall furnish to each Clerk of the Superior Court of _1 >P- 45 -
the several counties of this State, a list as he has in his office of all the
lots of wild lands lying in the county of such clerk, and it shall be the
iuty of the clerk of each county to fully prepare and keep a book of
record of such wild lands in his county, properly indexed, so that the
same may be readily referred to. ^
§874. (a.) Wild lands, how returned for taxation. All wild lands in ^t^i^/L^/f''
jthe State shall be given in for taxation as follows: Any person, - 1 . p- &. wj&^JL*
whether resident or non-resident of this State, owning wild lands in /<?■*■ "^ ^^?-
my county of this State other than that in which he resides, may, by
himself or agent, #go before the Ordinary or tax receiver of the county
pf his residence, if a resident of this State, and if not a resident of
iihis State, then before the Ordinary or tax receiver of any county in
f.his State, or any commissioner of Georgia, resident in another State,
pr the Ordinary or Judge of the Probate Court or similar officer of the
county of his residence, and make out a true return of all the wild
ands owned by him in any county of this State under oath, and shall
transmit the same to the receiver of tax returns of the county in which
;he land lies, within the time prescribed by law for giving in taxes,
md it shall be the duty of the receiver of tax returns to enter the same
)n his digest, and to turn over all such returns so made to him to the
Drdinary or county commissioners of their respective counties, as the
vase may be, to be filed.
§874. (b.) Subject to double' tax, when. Any wild lands not given in for Acts of isso-
/axes in the county in which they may be, shall be subject to double ~\l p - 45v j /
>ax, as other property, and it shall be the duty of the receiver of tax- " <- *^
^eturns, when taxes are not paid in the time provided by law, to issue ^V* •
executions against said wild land, and after due advertisement, as now
arescribed by law, to sell said lands for payment of taxes, and it shall
Be the duty of the receiver of tax-returns upon receipt by him of
my return of lands, as herein provided for, to transmit immediately
pis receipt for such return to the person making the same : Provided,
|;hat the owner of any wild lots or tracts of land through which county
lines may run, shall be allowed to return said lots or tracts of land in
luther county containing any portion of said lots or tracts of land.
§874. (c.) How redeemed. Whenever any wild land is sold by virtue Actsof i?8e
pf a tax execution, issued as provided in this Article, the owner thereof, -1, p - 4fx
j>r the executor, administrator, guardian or trustee of such owner, shall
lave the privilege of redeeming said land thus sold within two years
rom the date of such sale, by paying to the purchaser the amount paid
)y such purchaser, together with interest thereon at the rate of twenty
3er cent, per annum. That upon the redemption as aforesaid by any
>wner of any lot of wild land sold, said owner, or his agent, shall re-
ceive any surplus of money which may remain in the hands of the
Sheriff, after deducting the taxes and costs of such sale, and if said lot
>rlots are not redeemed in the time mentioned, all surplus funds
irising from the sale of wild land shall be paid over by the Sheriff
196 PART I.— TITLE VIII.— CHAPTER I.
Article 4. — Taxes, how returned and collected. ,
having possession of such funds, to the State Treasurer, with a list of
the lands from which said sums were derived.
§874. (d.) Officer liable for failure of duty. If any person has given
.Acts of "1880 in his lands as herein prescribed, and shall suffer injury by the failure
-.-i, p. 45. f thg receivers of tax returns to do their duty, the officer so offending
shall be liable on his bond to the party so damaged for the full value
of the land sold.
§875. Wild lands of non-residents, females, etc., how returned. [The returns
i (b) Acts of required in the foregoing section, so far as it relates to returns of wild
Act'of"24th^ an( ^ s ' ma y De made in the case of non-residents, females, absentees and
iiteb., 1873. sick persons, by forwarding by mail or other safe conveyance, a state-
ment under oath, of the lands owned and the value thereof, and the taxes
due upon the same shall be paid to the officer of the county in which
the return is made, who by law is authorized to collect the taxes of such
county.] (b.)
§875. (a.) Returns of taxes paid by colored people to be made. It shall be
Acts of 1874, the duty of the several receivers of tax returns, and tax collectors in
,.p. 109. this State, or other officers performing similar duties, to make returns!
to the Comptroller-General of the character" and amount of all taxes
returned or paid by colored tax payers in this State. And it shall be
the duty of the Comptroller-General in his annual report, to make a
general exhibit of the character and amount of the taxes so returned.]
§875. (b.) Names of tenant tax payers to be given. [It shallbe the duty
.Acts of 1878 of freeholders, or their agents, to make returns to the tax receiver of
^9, p. 25. their respective counties, the names of all persons liable to pay taxes]
residing upon, their premises, on the first day of April of each year
said returns to be made within the time now prescribed by law.]
§875. (c.) Insurance companies to give names of agents. From and after
.Acts of 1880 the first day of May, 1882, insurance companies doing business in this
-ri, p. 47. State in making their returns to the Comptroller-General for purposes
of taxation, shall give the name of each agent acting for such com-
pany, and post-office address of same; the aggregate amount of risks
underwritten in this State during the tax year hereinafter provided;
the amount of premiums received, and the losses paid and unpaid by
agencies.
§875. (d.) President makes return. The returns provided for in the
Acts of 1880 "preceding section shall be made by the President, or some other duly
-i, p:47. authorized officer of the company duly sworn to, and shall be forward-
ed to the Comptroller-General, on or before July 1st, of each year, and
at the time of making such return, the amount of tax due by said
company upon premium receipts, or otherwise, shall be forwarded to
the treasurer of this State.
f §875. (e.) Returns, shall embrace what. Returns hereinbefore required
Acts of 1880 to be made to the Comptroller-General shall embrace a period of time
-i, p. 47. commencing with May 1st, and ending with April 30th, next preceding
the date of the return made, and companies making the same must
notify the Comptroller-General of officer or attorney in this Stattj
against whom legal process shall issue in case it becomes necessary fori
the Comptroller to issue fi. fa. against said companies for any violatiorj|
I of the laws in this State governing insurance companies, or for the
non-payment of taxes due by them.
General Note. — Assessment of taxes : Cooley Tax., 258, et seq. ; Burroughs Tax.
, 194, et seq.
PART L— TITLE VIII.— CHAPTER I.
197
Article 5. — Delinquent tax payers and proceedings against them.
ARTICLE V.
DELINQUENT TAX PAYERS AND PROCEEDINGS AGAINST THEM.
Section.
876. Defaulting corporations.
877. Forfeiture of charter, etc.
878. Penalty where none is fixed.
879. Default tax on foreign corporations.
880. Penalty on lottery dealers.
881. Assessments in absence of returns.
882. Ft. fa. vs. corporation.
883. Ft. fa. vs. agent, how executed.
884. Duty of collecting officer.
885. Relief of one unjustly put in default.
886. Collector's./?, fa., how issued, etc.
886. fa.) Collection of insolvent tax ft. fas.
887. Pees of officers.
888. By whom and how executed.
Section.
889. Authority of constable,
890. Sales under tax ft. fas.
891. Defendants may point out property.
891. (a.) Tax ft,, fas. transferable.
892. Excess, how disposed of.
893. Conveyance to purchaser.
894. Purchaser to have possession.
895. Property exempt from sale.
896. Claims, condition of claim bond.
897. Unreturned property, proceeding.
898. Owner may redeem land sold.
899. Tax/?, fa. runs to any county.
900. Penalty against defaulting brokers.
901. Defaulting corporations, etc.
§876. (879.) (800.) Defaulting corporations If any corporation, com-
pany, person, agency or institution, who are required to make their
returns to the Comptroller-General, shall fail to return the taxable
property or specifics, or pay annually the taxes for which they are
liable to the State treasury, the Comptroller-General shall issue against
them an execution for the amount of taxes due, according to law, to-
gether with the costs and penalties.
Section cite.d; illegality dismissed, not entitled to the terms of the Act of 1874, a
later provision repealing an exemption from tax in the t harter of a railroad: 62 Ga.,
463-7. Section cited; illegality dismissed: 62 Ga., 500-8. A tax execution against r
dealer in sewing machines, under this section, not restrained by injunction : 63 Ga., 738.
§877. (880.) (801.) Delinquent corporations, penalty. The penalty
against all such corporations shall be the forfeiture of their charters,
and if not chartered by this State, then the immediate suspension of
their business therein.
§878. (881.) (802.) Penalty, where there is no special provision. The pen-
alty or default tax on banks, railroads and other corporations, where
there is no special provision, shall be three times the amount of their
lawful tax.
§879. (882.) (803.) Foreign insurance companies, penalty. The penalty
or default tax on foreign insurance companies shall be five hundred
dollars; on foreign bank agencies, two thousand dollars; on express
companies, ten thousand dollars.
§880. (883.) (804.) On lottery dealers. The penalty on lottery dealers,
if there should be any authorized by the laws of this State, shall be
three times the amount of the taxes assessed.
§881. (884.) (805.) When there is no return. When there is no return
by which to assess the tax, the Comptroller-General shall, from the best
information he can procure, assess in his discretion.
§882. (885.) (806.) Executions issued against corporations, how directed. ?3557>
The executions issued by the Comptroller-General against any bank or
other company shall be directed to all and singular the Sheriffs and
other lawful officers of this State, with directions to levy the same on
the property of the corporation or company, with power to issue and
serve garnishments upon the debtors of the corporation.
§883. (886.) (807.) Executions against agents, etc. The executions
against agents of foreign institutions as aforesaid shall be against the
principal agent or his successor, and shall authorize the officer to levy
on all the property of the agency, to seize its money, notes, or other
effects.
§884. (887.) (808.) Money collected on fi. fa. When an officer collects
money on such process, or on any other issued by the Comptroller-Gen-
eral, he shall, without delay, remit the same to him by some safe and
198 PART L— TITLE VIII.— CHAPTER I.
Article 5. — Delinquent tax payers and proceedings against them.
speedy method, and on failure to do so, is liable as he would be to other
plaintiffs.
Section cited and creditor with an older ft. fa. cannot claim the money, no judicial
interference with tolerated: 58 Ga., 106-7.
$880. (888.) (809.) Persons wrongly judged as defaulters, how relieved.
Act of 1815, When a person shall have lawfully returned and j:>aid his taxes in one
."' p " 1062 ' county, and is treated as a defaulter in another for the same tax, or any
portion thereof, the grand jury or the Ordinary of the county claiming
the tax may discharge said defaulter, which will exempt him from lia-
bility for it, and shall authorize the Comptroller to credit the collector
y f or the same, and the Governor to draw his warrant therefor.
J-?m*r* £ct*£+** y ^' ' §886. (889.) (810.) Tax collectors' fi. fas, when and how issued. Execu-
faf J/ ^" ct of 1 - 804 ' ^ ons f° r non-payment of taxes against persons who are not required to
/ f c ' p " 10 ° 8, pay to the Treasurer are issued by the tax collectors of their respective
counties as soon as the last day for payment has arrived, and must be
directed to all and singular the Sheriffs and constables of this State.
Tax collectors have the power to issue executions against defaulting tax payers,!
which the Sheriff and constables are hound to execute and return: 11 Ga., 79. Sum-i
mary of statutes on this subject: 11 Ga., 81. Constitutional provisions as to trial by]
jury do not apply to the case of a tax-payer who fails or refuses to pay his tax : 23 Ga., j
566. Rule against the Sheriff to account for such ft. fas: 29 Ga., 212. Prerequisites
for must be strictly complied with, and an injunction sustained against a tax ft. fa.\
issued bv a city : 31 Ga., 700. Tax ft. fa. levied by a constable on land and returned to
the Sheriff to sell : 60 Ga,, 352-3.
In Georgia a writ fieri facias for taxes is subject to the same rules as to its mode of
execution as writs issued on judgments in favor of private parties : 3 Woods, 434.
$886. (a.) Insolvent tax fi. fas may be put out. It shall and may be
Acts of 1880 lawful for the county authorities of any county in this State, to place
-i, p. 4o. such tax executions as have been returned insolvent, in the hands of
the Sheriff or any constable of the county for collection, to be levied,
and sales thereunder to be made in accordance with the regulations
governing sales, under executions issued from common law judgments.
§887. (890.) Fee for issuing tax fi. fas. [Tax collectors shall be allowed
/a) ; Acts of a fee of fifty cents for issuing tax fi. fas; but no tax collector, Sheriff,
1801, p. so. or C011g table, shall receive costs on said fi. fas unless the same be col-
* lected from the defendant], (a.)
I^L^^/'' t£- ■^^-- §888. (891.) (811.) By whom levied and sales under. Executions may
y' ej ^ r ^ ActsofiS76, be levied by either of the officers to whom directed, or other officer who
^//TL^ p " 30 " by law may be authorized in their place; but a constable cannot levy
+&£*"** 7 Mm, m. a tax fi. fa. when the principal amount exceeds one hundred dollars,
^^^^./Ty 7 . -2-<£ and if a tax fi. fa. for less than one hundred dollars be levied by a
Sheriff, his fee for said levy shall be that now allowed constables, and
if the levy be made upon personalty, the same shall be advertised and
sold as is now provided for Justice Court fi. fas. If the constable levies
on land, it must be returned to and sold by the Sheriff of the county. *
Under this section Sheriff could not levy where the amount did not exceed fifty dol-
lars : 60 Ga., 466. But by Act of 1876, page 16, he can levy whatever amount involved.
Where the constable could levy the fi. fa. on land and return it to the Sheriff: 60 Ga.,
353. And by Act of 1876, page 30, could do this where the amount involved is over
fifty dollars. A Sheriff levying a tax fi. fa. of less than one hundred ($100) dollars,
need not make an entry of no personalty before -levying on realty : Plant vs. Eichburg,,
Pampht. Feb., 1880, page 60.
889. (692.) (812.) Constable may levy in any part of the county. The
tax collector may place his fi. fas in the hands of any one constable oi
the county, who shall be authorized to collect or levy the same in an}
part of the county.
§890. (893.) (813.) Sales under tax fi. fas. Sales under tax fi. fas shall
be made under the same rules governing other judicial sales.
*The Act of 1880-1, p. 83, provides a fee of $1.00 for collection of a Xaxfi.fa. of over one hundrec
dollars, and of one hundred dollars and under, a fee of fifty cents.
PART L— TITLE VIIL— CHAPTER I. 199
Article 5.— Delinquent tax payers and proceedings against them.
Purchaser at, frets a good title when : 8 Ga., 479. Tax collectors' sales must show
upon their face that all the y>rerequisites of the law have been strictly complied with :
11 Ga., 423-7. Sales should be made in the county where the property to be sold is :
20 Ga., 639. What sale is void and when it does not divest the lien of a mortgage : 25
Ga., 103. Mortgagee may purchase under a tax execution older than the mortgage so
as to take the land freed from a judgment older than the mortgage : 55 Ga., 145. Pur-
chaser at is not entitled to rents, issues and profits accruing between the time of his
purchase and the redemption of the property: 60 Ga., 260.
4 Pet., 349; 6 Wh., 119; 4 Cr., 403; 16 How., 310; 4 Wall., 210; 13/506; 6/268;
Cooley Tax., 322; Burroughs Tax., 277 ; Blackwell on Tax Titles. Differ from execu-
tion sales, how: 20 Am. D., 284. Combination to purchase at: 18 Am. D., 566, n ;
15/576, n. Every step required by law is indispensible to sustain the title : 17 Am. D.,
506, 507, n ; 16/101. Person under obligation to pay tax cannot acquire title at tax
sale: 15 Am. D., 684, 690, n ; Cooley Tax.. 345. Sale to mortgagee: 15 Am. D., 687, n.
To mortgagor: 15 Am. D., 687, n. To officer conducting the sale: 15 Am. I)., 690, n;
25/396. To one of several co-tenants: 15 Am. D., 686. n; 26 Am. R., 164. To persons
in possession: 15 Am. D., 685, n. To tenant for years: 15 Am. D., 690, n. To tenant
for life : 15 Am. D., 689, n. To trustee: 15 Am. D., 690, n. Right of intruder to ac-
quire tax title: 24 Am. R., 417. Sale of whole land for taxes due for part only, void:
7 Am. D., 690. In Georgia: 4 Cr., 403. Sale of undivided part of property : 20 Am. D.,
284. For taxes which have been paid, invalid: 9 Am. D., 225. Requisites of notice:
Witde on Notice, 474; Cooley Tax., 334.
§891. Defendant* may point out property. Defendants in fi. fas, issued Acts ofisTe.
by tax collectors for taxes, shall have the priyilege of pointing out the p- 128,
property upon which to levy said fi. fas, but it shall be within the §3Gii
discretion and power of the collector to have the proper officer levy the
same on any other property he may point out, whenever he deems it
necessary to secure the prompt collection of the tax fi. fas.
Formerly a tax collector could not transfer a tax fi. fa. so that the transferee could
enforce it against the defendant's property: 59 Ga., 202. Fi. fa. prima facie satisfied
and transferred, such transferee cannot, interfere with the title acquired at a Sheriff's
sale before the transfer: 61 Ga., 61. There was no authority before the Act of 1872
to transfer a tax fi. fa,. : 48 Ga., 177. Since the Act of 1875, if a tax fi. fa. is trans-
ferred, but not recorded in thirty days, cannot be enforced by transferee: Hoyt vs.
Bryan, Pampht, Feb., 1881, p. 9.
§891. (a.) Transfer of certain executions provided for. Whenever any Acts of l&72,
person, other than the person against whom the same has issued, shall ^ctsof"wr>
pay any execution issued for State, county or municipal taxes, or any p. H9.
other execution issued without the judgment of a Court, under any ^^^^(a^-r^^- >
law, the officer whose duty it is to enforce said execution, shall, upon
the request of the party paying the same, transfer said execution to
said party ; and said transferee shall have the same rights as to enforcing
said execution and priority of payment as might have been exercised
or claimed before said transfer: Provided, said transferee shall have said //
execution entered oirftfe^e^ecution docket of the Superior Court of the// ^T ^y*
county in which tire same was issued, and if the person against whom
the same was issued, resides in a different county, then also in the county
of such person's residence, within thirty days from said transfer. And
all tax executions issued prior to February 20, 1875, now in the hands
of transferees, or that may hereafter be transferred to third parties, and
that have not been recorded, as herein providecLslnillbe entered with-
in six months after 16th December, 1879, on fnletexTcution docket of
the Superior Court of the county in which tire same was issued ; and if
the same was issued against a person or property residing or located in
a different county, then also in the county of such person's residence,
or where such property is located. And in default thereof such
executions shall lose their lien upon any property which has been trans-
ferred bona fide, and for a valuable consideration before the record and
without notice of the existence of such execution or executions.
§892. (894.) (814. ) Excess, how paid. If there is any excess after pay-
ing taxes and all expenses, it shall be immediately paid to the person
authorized to receive it.
§893 (895.) (815.) Deed made at sale under tax fi. fa. valid. The deed
or bill of sale made by such officer shall be just as valid to the pur-
200 PART I.— TITLE VIII.— CHAPTER I.
Article 5.— Delinquent tax payers and proceedings against them.
chaser as if made under the ordinary process of law issuing from the
Superior Court.
^The terms of this section do not apply to sales by the marshal of a town or city : 50
Ga,, 424. Mortgagee buying in land at a tax sale holds it good against a judgment
older than the mortgage: 55 Ga., 145. This deed is not evidence without the fi. fa.
under which the sheriff acted : 55 Ga., 572.
14 Pet., 322; 4 Wh., 77; 11 How., 414; 13/472; 2 Blc, 599; 6 Wall., 268; 13/506;
14/306; 1 C. L. J., 267; 4/296; 5/18, 118, 157; 7/176; 8/219; 9/134-5, 337; Cooley Tax.',
353; Burroughs Tax., 323-338; Blackwell on Tax Titles. Recitals in tax deeds, when
not evidence : 17 Am. D., 505-514, full note. Purchaser at tax sale, holding deed, de-
fining quantity but not location of land, may himself locate the part of the tract: 26
Am. D., 83.
§894. (896.) (816.) Officer to put purchaser in possession of land. The
officer selling has the authority to put purchasers in possession of land
^ sold, as in other cases.
/fr The Superior Court will not order the marshal of Atlanta to place in possession the
purchaser of land sold- under a tax ft. fa. for taxes due the city, which sale was by a
former marshal : 40 G^,, 49. But the purchaser is not entitled to the rents and profits
accruing between the time of his purchase and the redemption: 60 Ga., 261.
§895. (897.) (817.) Property exempt from sale. Property exempted
222002, 2040. from levy and sale ordinarily, is exempted from levy and sale for
taxes.*
Stated : 11 Ga., 79. This section does not apply to sales bv the marshal of a town or
city: 50 Ga., 424.
§896. (898.) (818.) Claim may be interposed when tax fi. fa. is levied.
Act of 1810, When property is levied on under a tax fi. fa. issued either by the
Ac P t'of°'i840, Comptroller-General or tax collector, it may be claimed by a third per-
c. p. 1072. 'son and tried in the same manner as other claims are, except that the
claimant shall give a bond and security for the eventual condemnation
money, and if found subject, such claimant and his sureties shall be in
all respects liable as on appeal bond.
§897. (899.) (819.) Property not returned but assessed, how disposed of
When property is assessed for taxes which has not been returned by
any one, as soon as assessed the the tax collector shall at once issue an
execution against it for the amount due and costs, and the Sheriff shall
advertise it for sale in some public gazette ninety days before the day
of sale, and if by said day the taxes are not paid, it shall be sold, pro-
vided renting or hiring will not bring the requisite amount. What-
£ ever overplus there may be shall be paid over to the Ordinary as a part
of the educational fund, with a statement of the property and account
l of sales, subject to the claim of the true owner within four years.
Section cited and referred to: 51 Ga., 154.
§898. (900.) (820.) Land sold may be redeemed. Whenever any land
Acts of 1878 is sold by virtue of a tax execution issued under this Code, the owner
-9. p. 50, thereof, or any administrator, executor, or guardian, or other trustee of
the defendant in execution, shall have the privilege of redeeming said
land thus sold within one year by paying the purchaser the ampunt
paid by said purchaser for said land, with ten per cent, premium thereon
from the date of the purchase to the time of payment.
•When the lien of a mortgage is not divested by a tax sale: 25 Ga., 103. Under a
t city tax j?. fa. the right of redemption exists : 50 Ga., 425. The purchaser on redemp-
tion only gets his money back and ten per cent. ; this section cited: 60 Ga., 262.
10 Wall., 464 ; 22/263 ; Cooley Tax., 363 ; Burroughs Tax., 357.
I §899. (901.) (822.) Tax fi. fas run in any county. If there is not suf-
Act of 1804,- ficient property in the county where the tax payer resides to satisfy
j. p. ioo0. ^ e taxes, property situated in any other county is the subject of levy
t and sale.
A tax collector's sale must take place in the county where the property to be
sold is: 20 Ga., 639.
'•'•See Const, of 1877, Art. 9, Sec. 2, par. 1.
PART L— TITLE VIII.— CHAPTER I. 201
Article G.— Delinquent tax receivers and collectors, and proceedings against tliem.
§900. (902.) (823.) Brokers, etc., failing to make returns. If any broker, Act ofisso,
private banker or exchange merchant, or their agents, in this State, fail c : p ' 1068 '
to return the amount of capital they intend to employ during the year,
they shall pay a tax of five hundred dollars, to be levied and collected
as other taxes.
§901. (903.) (824.) Defaulting companies. Any incorporated or other
company making default, shall be taxed by the collector as such de-
faulters are by the Comptroller-General.
ARTICLE VI.
DELINQUENT TAX RECEIVERS AND COLLECTORS, AND PROCEEDINGS
AGAINST THEM. y^> <2us-C^~^<_^ *^~t!Le-~~ ^a^^^^
Section. Section/
902 Penalty for not completing digest. 910. Amount of pennlty,
903. Penalty for improper digest. 911. Fi. fas. vs. tax officers.
912. How fi. fa. may be suspended.
tl3. Property bound from date of bond.
914. Sab's under./?, fas vs. tax officers.
915. Collector must await digest.
916. Must give bond, etc., before he collects.
904. Penalty for useless digest.
905. Receivers' liability, how enforced.
906. Penalty for false digest.
907. Penalty for deceiving tax payer.
90s. Altering digest by collector.
909. Fi. fa. vs. collector and sureties.
§902. (904.) (825.) Receivers failing 'to complete digest. If a tax receiver
fails to have his digest completed and deposited by the first day of August
in each year, unless excused by the terms of the law or by the Comp-
troller-General, he forfeits, for every week's delay, one-tenth of his com-
missions ; and if the delay extends beyond thirty days he forfeits one-
half his commissions ; and if beyond the time when the Governor and
Comptroller fix the rate per cent., he forfeits all his commissions.
§903. ( 905. ) ( 826. ) Failing to make a proper digest. If he fails to make
out his digest in the manner prescribed by law, or to comply with the
directions given him by the Comptroller-General, in so doing he forfeits
one-half his commissions.
§904. (906.) (827.) Making a useless digest. If such digest is made out
so badly as not to answer the purpose of the tax laws, he forfeits all his
commissions, and must be removed from office by the Ordinary, on the
request of the Comptroller-General.
§905. (907.) (828.) Becoming indebted to the State, process to issue. If he
receives commissions, which he is not entitled to receive or retain, or
in any other manner becomes possessed of any money belonging to the
State, or incurs any liability thereto, the Comptroller-General is au-
thorized to issue execution or other legal process against him.
§906. (908.) (829.) Making false return. If a receiver makes a false Act of ijbm,
return in either of his digests, expressive of more than is returned, he ' p ' 10 °
shall forfeit to the party aggrieved, in all cases, one hundred dollars,
and if the amount out of which such part}- is defrauded by such return
is more than one hundred dollars, then ten dollars for every one dollar
over that amount, to be recovered by a qui-tam action.
§907. (909.) (830.) Liable for deceiving taxpayer. If, by any device,
intentionally, he causes the tax payer to pay more than his lawful tax,
the provisions of the preceding section apply.
§908. (910.) (831.) Collector fraudulently altering digest. If any col-
lector, with fraudulent intent,' alters the digest rendered to him, or any
other of the digests of his county, he is guilty of forgerj^ and, on con-
viction, shall be punished by imprisonment in the penitentiary for not
less than two nor longer than ten years.
§909. (911.) (832.) Tax collector failing to settle with Comptroller. If any Act of 1823,
collector shall fail to settle his accounts with the Comptroller-General c - p- 1025 -
202 PART I.— TITLE VIII.— CHAPTER I.
Article 6. —Delinquent tax receivers and collectors, and proceedings against them.
in the terms of the law, he shall issue execution against him and his
/^%* *f~2-. ■ sureties for the principal amount, with tho ponalty and ooettk d***^***
JwrTen removed upon a quo warranto, and ordered to pay taxes collected to the Clerk of
th€ Superior Court, such execution cannot issue against him as tax collector : 3 Ga., 233.
Tax execution against a collector and his sureties must be issued by the Comptroller-
General : 27 Ga., 69. Presumption as to the custody of such execution : 27 Ga., 69. Is
a homestead subject to such fi. fas. : 47Ga.,417. Suit by one surety against the other: 59
Ga., 646. No notice necessary before issuing execution : 60 Ga., 296-298. Tax collector
cannot protect himself from paying over money collected from the tax-payers, and the
Ordinary's order protects him from claims of the tax payers: 53 Ga., 191-4.
/£\^^2^£*£' < §910- (912.) (833.) Amount of penalty. The penalty is twenty per
/A *-*■**
/fy
cent, per annum, upon the amount retained, from the time of default
until paid, which includes interest.
§911. (913.) (834.) Fi. fas against collectors. All executions and other
process against collectors and receivers must be directed to all and sin-
gular the Sheriffs of this State, and must be executed by them, their
lawful deputy, or other officer lawfully in their stead.
Rule against the Sheriff to account for tax fi. fas placed in his hands: 29 Ga., 212.
When a lew by a Sheriff on the property of his co-surety and co-defendant was not
permitted: 60 Ga., 490.
§912. (914.) (835.) Not to be suspended, etc. Executions so issued shall
Act of 1804, not be suspended or delayed by any judicial interference with them,
c. p. I0o2. ] 3U ^ ^ e Governor may suspend the collection not longer than the next
g3668. meeting of the General Assembly.
By the Act of 1804, Courts cannot entertain an affidavit of illegality to an execution
proceeding against a defaulting tax collector and his sureties: 21 Ga., 50. If defaulting
tax collector is entitled to any judicial interference, it is as complete at law as in
equity: 40 Ga., 133. See note to section 3668. Section cited and the Sheriff was not
made to pay over money here collected to plaintiff in an older judgment: 58 Ga., 106-7.
When the Courts w T ill not entertain an injunction : 46 Ga., 326-341.
§913. (915.) (836.) Property of collectors and receivers, etc., bound. The
property of collectors, receivers, and of their sureties, is bound, from
the execution of their bonds, for the payment of taxes collected and the
discharge of their duties.
§914. (916.) (837.) Proceedings in selling, etc. The proceedings in sell-
ing property under such executions must be the same as under fi. fas
issued from the Superior Court.
§915. (917.) (838.) Collector not to collect taxes, etc. If any collector shall
collect, or attempt to collect, any taxes before the receiver has completed
and transmitted his digest to the Comptroller-General, unless specially
so ordered by such officer, or allowed by special enactment, he forfeits
to the State double the amount so collected, or attempted to be col-
lected, to be recovered by execution issued by the Comptroller-General.
§916. (918.) (839.) Must give bond before collecting. If any collector
Act of 1826, collects, or attempts to collect, any tax before he has given and had ap-
p- im - proved the necessary bonds and security, and taken the oaths of office
he is guilty of a misdemeanor, and upon indictment and conviction,
shall be fined not less than one hundred dollars, and, in addition, double
the amount so collected, and in default of payment three months' im-
prisonment in the common jail. The Governor may vacate the com-
missions of defaulting tax collectors, or of tax receivers failing or
refusing to do their duty, and in such event the vacancy shall be filled
in the manner prescribed for other vacancies.
Cannot urge the invalidity of the orders of the Ordinary for levying the taxes against
a foreclosure of a mortgage made to secure the county: 56 Ga., 290. Section cited as to
vacating tax collector's commissions: 48 Ga., 137.
Brandt on S. & G., $447; Cooley on Taxation, 499; 23 Am. D., 513 ; 35 Am. R;, 462
30/788.
PART I.— TITLE VIII.— CHAPTER I.
Article 7.— Tax receivers.
ARTICLE VII.
TAX RECEIVERS
Section.
917. How receivers are elected, etc.
918. Receiver's oath.
919. Liability on bond.
920. Receiver's duties specified.
921. His failure to advertise no excuse.
922. Penalty for refusing to return.
923. Party refused, etc.
923. (a) Names of tax payers in full.
Section.
923. (b.) Inspection of books by grand jury.
923. (c.) Corrected books a guide.
923. (d.) Special charge.
923. (e.) Liquor dealers to be named.
924. Clerk must forward returns.
925. Claim of right to assess, no refusal.
926. Receiver's pay from county.
§917. (919, 920.) (840, 841.) Tax receivers, how elected. The tax receiv-o?\ Acts of
ers shall be elected on the first Wednesday in January [biennially] (a.)
for the term of [two years] (a.), and are commissioned and qualified as
Clerks of the Superior Court are. Vacancies are filled as vacancies for
such clerks.
§918. (921.) (842.) Receiver's oath. Such receiver, whether elected or
appointed, before entering on the duties of his office, besides the oath
required of all civil officers, must take and subscribe the following oath :
■" I swear that I will truly and faithfully perform the duties of receiver
of returns of taxable property, or of persons or things specially taxed
in the county to which I am appointed, as required of me by the laws,
and will not receive any return but on oath or affirmation, and will,
before receiving returns, carefully examine each, and will, to the best of
my ability, carry out all the requirements made upon me by the tax
law. So help me God."
[He shall also at the same time give bond and security in a sum equal fa^Acts of
to one-half of the amount of the State tax, supposed to be due from the 124,
county, for the year in which he shall give bond ; the amount of said/2^
bond to be filled up by the Comptroller-General before being sent out /f
to the several counties from the executive office.] (a.)
§919. (922.) (843.) Liability of receivers, etc. Receivers and their sure- §940.
ties are liable on their bonds for all penalties or forfeitures they may
incur under the law, and for all losses, or damage, or expense the State
may sustain by reason of their conduct.
§920. (923.) (844.) Duties of receiver enumerated. It is his duty —
1. To receive all returns of taxes within the time and in the manner Act of 1804.
prescribed by law. Act'otlm,
2. To make out and perfect the three digests in writing and figures c. p. 1054^
plainly, legibly and neatly, and to properly deposit them. c. p. 1057. '
3. To give ten days' notice in writing of the several times and places c. C p.°io5<? 3,
at which he will attend in the several militia districts of the county, Acts of i85i
for the purpose 01 receiving tax returns.
4. To attend at such place at least three times during the time allowed
in which to make returns.
5. To keep a standing advertisement as to the day or days when he
will be at the county site for such purpose.
^ 6. To receive tax returns at any time when a tax payer applies to
give in.
7. To embrace in his digest to the Comptroller-General, the Ordi-
nary and the tax collector, respectively, a list of all defaulters, and the
amount of their true and double tax, and of all property assessed by them
and returned by no one, or other special action had in conformity to
the laws.
8. To publish at the door of the Court House for thirty days lists of
all the defaulters and the amount of their double taxes.
9. To take from each tax payer, resident of the county at the time of
receiving his tax returns, the number of his own children between the
-2, p. 290.
204 PART L— TITLE VIIL— CHAPTER I.
Article 7.— Tax Receivers.
ages of six and eighteen years, and those for whom he is guardian, and
enter the same in the proper plaee and column in the digests.
10. To assess upon the digests deposited with the Ordinary the
county taxes according to law, and the rate per cent, levied by said
Ordinary.
11. To conform to such rules as he may be furnished with, and to
obey such orders as may be given by the Comptroller-General.
12. It shall be the duty of the receiver of tax returns, or the person
Act? of 1875, acting as such, in each county in this State, by the fifteenth day of
July in each year, to obtain from every tax payer in his county, a state-
ment, under oath^of the acreage planted by him or her in the different
crops grown in the county; also, the products of any manufactories in
which he or she may be interested, and other statistics, agricultural
and mechanical, which may be valuable, as showing the material re-
"/,r*~£*f' ^ * sources of the State — the acreage planted to be taken for the current
year, and the productions for the preceding year. Said statement by
the tax payer shall be obligatory upon him.
13. To perform all other duties that the law requires, and which
necessarily under the law appertain to his office.
§921. (924.) (845.) Negligence of receiver, etc. It shall not be an excuse
to any person for not making a return of his taxes as the law requires,
that the receiver should fail to advertise or fill his appointments.
§922. (925.) (846.) Refusal of receiver to receive returns, etc. If any re-
Acts of 1874, ceiver refuses to receive any return of taxes when properly tendered,
p. los. an( j i n p resence f a witness, and in the time the law requires, he is
guilty of a misdemeanor, and on indictment and conviction, shall be
fined not less than fifty dollars.
Refusal to receive returns and an injunction refused: 59 Ga., 354-5.
§923. (926.) (847.) One whose return has been refused, etc. The person
whose return is thus refused may save a double tax by making his re-
turn to the Ordinary, together with an affidavit in writing that he
tendered said return to the receiver, stating the time when, place
where, and persons present, and that it was refused.
§923. (a.) Names to be taken in full. It shall be incumbent on re-
Acts of 1876, cei vers of tax returns in the various counties of this State to enter on
p - 15, their digests the first name in full of all tax payers.
§923. (b.) Grand jury shall inspect receiver's books. It shall be the duty
Acts of 1874, of the tax receiyer in each county of this State, in each and every year,
p- m at the fall term of the Superior Court in his county, to lay before the
grand jury his returns for that year, of the taxable property in his said
county, and it shall be the duty of the grand jury to overlook the same,
and whenever they find an undervaluation, to correctly assess the same,
according to the market valuation of the property, and return to the re-
ceiver his returns with the corrections which they have made.
§923. (c.) Corrected returns, the guide for next year. When the receiver
Actsofi874, shall receive his returns for the next succeeding year, and the corrected
p. 108. returns made by the grand jury, it shall be his guide for that year, and
if the tax payer shall return his property below the valuation made by
the grand jur}^ the receiver and tax payer each, shall select an arbitra-
tor, and these two shall select an umpire to whom the question of val-
uation shall be referred, and their award shall be returned to the re-
ceiver, and shall be entered by him as the valuation of said tax payer's
property.
§923. (d.) These provisions to be given in special charge. It shall be the
Actsof 1874, duty of the Judges of the Superior Courts, at each fall term, to give these
p. 109. provisions in special charge to the grand juries that they may be in-
formed of the duties therein imposed upon them.
PART I.— TITLE VIII.— CHAPTER I.
205
Article 8.— Tax collectors.
§923. (e.) Liquor dealers to be returned by name. The receivers of tax Acts of 1878
returns in this State shall return by name all persons or firms dealing" 9,13 ' ' 8 '
in spirituous, vinous or malt liquors, intoxicating bitters, or other ar-
ticles of like character.
§924. (927.) (848.) Where return is made to cleric, etc. Such Ordinary
shall forward a copy of said return and affidavit to the Comptroller-Gen-
eral instanter, and retain the originals, for which he shall be entitled to
one dollar from the tax payer.
§925. (928.) (849.) What is no refusal. The claim of the receiver to
assess a tax payer's property is not a refusal to receive a return.
§926. (929.) (850.) Receivers pay, etc. The county shall pay the re-
ceiver one-half of what the collector gets for collecting the county tax-
Tax receivers were not entitled to any commissions on the county tax: 19 Ga., 611.
ARTICLE VIII.
TAX COLLECTORS.
Section.
927. Election and qualifi cation.
928. Vacancies, how filled.
929. Collector's oath.
930. Collector's bond.
930. (a.) Levy of county tax.
931. Bond jor county tax, how approved.
Section.
932. Must give bond before he collects.
933. County collector appointed, when.
934. Collector's duties specified.
935. His failures no excuse for others.
935. (a.) Statement to grand jury.
935. ib.) Quarterly returns of special tax.
§927. (930.) (851.) Election, commission of tax collectors, etc. Tax col-
lectors are elected at the same time, in the same manner, for the same
term of office, and are commissioned and qualified as tax leceivers.
§928. (931.) (852.) Vacancies, how filled. Vacancies are filled as they
are in the office of receiver.
§929. (932.) (853.) Collector's oath. Before entering on the duties of
his office, besides the oath required of all civil officers, he shall take and
subscribe the following oath:
" I, -j , tax collector of the county of , do swear that I will faith-
fully discharge the duties required of me by law as tax collector, and
that I will search out and make a true return of all defaulters, polls,
professions, and all taxable property not found on the tax receiver's di-
gest, or not returned to the Clerk of the Superior Court by the fifteenth
of August, and that I will pay over all taxes collected by me as required
by law. So help me God."
§930. (933.) (854.) Amount of bonds and their conditions. [He shall fa) Acts 01
also give bond and security for thirty-three and one-third per cent. lflf" 4,I> '
more than the State tax supposed to be due frbm the county for the /^_/. A /**
year for which said officer is required to give bond, the amount of the
bond to be filled up by the Comptroller-General before being sent out
to the county from the executive office,] (a.) and shall give another
bond with sufficient security, payable to the Ordinary, conditioned for
the faithful performance of his duties as collector of the county tax, in
a sum to be fixed by such Ordinary.
It is not compulsory, but is discretionary as to a bond under the Act of 1821: 11
Ga., 207. Where the bond is void under the Act of 1821 : 18 Ga., 47. Securities on a
bond for the collection of the State tax are not liable to the Ordinary for failure of the
collector to collect and pay over the county tax : 47 Ga., 639-642 ; section cited. As to
a> bondsman sharing- fees with the collector, his principal being made to respond to an-
other co-surety on the bond: 59 Ga., 644-7.
, §930; (a.) County tax levied without recommendation, when. In all cases, Acts of isstf
when the spring term of the Superior Court of any county in this State" 1, p * 41 '
has heretofore been, or may hereafter be, adjourned suddenly or unex-
pectedly before the grand jury shall have made their general. present-
.
206 JPART I.— TITLE VIIL— CHAPTER I.
Article 8. — Tax collectors.
• ments, it shall be lawful for the officers whose duty it may be to levy a
j county tax to levy the same to the full extent and for any purpose that
a recommendation of such grand jury would have authorized: Provided,
such tax shall not exceed the levy last recommended by a grand jury
for such county.
§931. (934.) (855.) Approved by whom. Such bond for county taxes
when given must be approved by the Ordinary, filed in his office, re-
corded in the book with other official bonds, and in all respects is an
official bond.
§932. (935.) (856.) Bond to be given, etc. Tax collectors shall not col-
Act of 1823, lect any portion of the county tax until such bond is given, and if they
/ <j. p. 1060. f a; Q ^ g^ ye suc ] 1 a bcmcl^ or one satisfactory to such Ordinary, he may
L appoint some competent person to collect the county tax.
a/1? JL* ^Lu^t- §933. (936.) (857.) Duty of person so appointed. When such an ap-
'jz»~6*ir6*c~~-^ pbintment is made, the person appointed shall give such a bond as is
/f*~S- /.# ff~* required of a tax collector, and he shall take an oath faithfully to collect
Yfiu*0£*.JJ&-f-* f ' and pay over the county tax, and in all respects shall have the same
AC privileges, discharge the same duties and incur the same penalties as
/X_j * / y-ihe tax collector would in collecting the county tax.
t/f^c/^Z^^^^f^<%^^ (937.) (858.) Collector's duties enumerated. It is the duty of the
y^/V"^' p- 1046, ' ^ ax COi l ec tor —
c. C p.°io58 12 ' 1- To diligently collect and promptly pay over in the funds allowed
Acts of 1857, by law the State and county taxes to the Comptroller-General and the
Actsof 1858, County Treasurer, respectively.
A_a />£/ Jz-J<-*V*^p-^ Cannot urge the invalidity of the order of the Ordinary in reference to the tax/as an
i~ yP ' * -. 1/1/ excuse for not paying over the money collected : 56 Ga., 290.
^ ov% ^ i y ' T " 2. To search out and ascertain as far as possible all polls and profes-
^_v. a / ^ . sions, and all taxable property not returned to the receiver or not found
in his digests.
*/a*^r. / * /0%r ' 3. To enter all of such defaults in a book kept for that purpose, to
' (a) Acts of assess and collect thereon a double tax and pay the same over to the
1S62-63, p. Comptroller-General and County Treasurer, respectively, after deducting
(7 L, //- [single] (a.) commissions, and to deposit said book with the Comp-
^ le ^/ <A / X % troller-General, and a copy with the Ordinary, before the day of final
■^1 Z^ C+J*^*^ settlement.
j^^^j. 4. To have his insolvent lists allowed in the manner required bylaw
before final settlement with the Comptroller-General.
5. To issue executions against all defaulters and insolvents, and place
them with the proper officer for collection.
6. To give notice of the time and places of his attending to collect the
taxes, and of the days he will be at the Court House, and there to at-
tend during the time for collection required of the receiver.
7. To publish at the door of the Court House, for thirty days, his in-
solvent lists, including the taxes of each person thereon. To furnish
to election managers of the county lists of all persons who have not paid
their taxes.
8. To pay the receiver his commissions, upon the production of the
Comptroller-General's receipt for his digest, with a specification therein
of the amount of commissions to which he is entitled, and not other-
wise ; and to produce said receiver's receipts, with his receipts thereon,
to the Comptroller-General, before he shall be allowed credits for such
commissions.
9. To conform to such rules as may be furnished, and to obey such
orders as may be given by the Comptroller-General.
10. [To obtain, by or before the fifteenth of December in every year,
from every person engaged in agriculture in his county, a statement on
oath, of the amount, as near as practicable, he or she has made, that
year, of each of the farm crops, grown in the county ; the cotton crop
//■
PART I.— TITLE VIII.— CHAPTER I.
207
Article 8.— Tax collectors.
be returned in bales, averaging four hundred and fifty pounds each,
11 grain crops and rice in bushels, and hay and all other forage crops,
n tons. Also a statement of the number of farm animals of each kind
le or she owns and has in possession, and to forward said returns of the
mount of crops, and the census of farm animals to the Comptroller-
general of this State b}^ the fifteenth of December in each year.] (a.)
11. [In collecting the special tax that may be levied year after year
n dealers in intoxicating bitters, or other articles of like character,
nd upon dealers of spirituous, vinous and malt liquors, or any other
terson liable to special tax, to report the name of the person or firm
aying said tax, the amount paid, and the date of said payment, to the
Comptroller-General at the time of paying said special tax into the
Itate treasury.]
12. To issue executions against all tax defaulters in this State, who
re residents of the counties in which said tax collectors are holding
heir offices, for any and every year preceding and including the years
3r which they are elected, and to collect the tax due from said defaul-
ers, and pay over the same to the proper authorities.
13. To perform all other duties that the law requires, and which
lecessarily under the law appertain to his office.
It is the duty of the collector, and not of the receiver, to make the assessment both
>r State and county purposes upon the taxable property of the county : 21 Ga., 206.
§935. (938.) (859.) Collector's negligence no excuse to defaulting tax payer.
it is no excuse to any person for not paying his taxes as the law re-
[uires, that the collector should fail to advertise or fill his appoint-
ments.
§935. (a.) Statement of special taxes to gra,nd jury. It shall be the
uty of the tax collector of each county in this State to lay before the
rand jury, on the first day of the term of each Court, a full statement
f all special taxes received by him for the six months immediately
receding said report, and to state fully the date of said payments, from
mom received, and also the amounts received. And the Judges of the
uperior Courts of this State shall give this law in charge to the grand
iry at each term of their respective Courts.
§935. (b.) Quarterly returns of special taxes to Comptroller. It shall be
he duty of the tax collectors of this State to make quarterly returns
the Comptroller-General, under oath, to be administered by any
uly qualified officer, of all special taxes collected by them, except those
iven in and entered upon the receiver's digest, setting forth in said
3turns the names of all persons or companies paying such tax, when
aid, for what purpose, and the amount thereof.
General Note. — Where by mistake the tax collector pays over money to the
ounty Treasurer he can recover it back : 3 Ga., 90. The Comptroller-General cannot
sue an execution against a person assuming to act as tax collector and his sureties :
Ga., 233. A tax collector in default cannot take a homestead as against the process of
le State directed against him : 60 Ga., 76. Tax collectors cannot urge as a defense the
tvalidity of the Ordinary's orders levying the extra tax : 53 Ga., 191-4.
_ General Note. — Action against collector for trespass: 24 Am. D., 116; Cooley Tax.,
[0. ^ Having given an imperfect tax deed, which does not pass title, may afterward
1 his own motion give a second and corrected deed : 4 Am. R., 214.
(a) Act of
is:;'., p 6.
Acts of 1878
-9, p . 78
Acts of 1875
p. 120.
Acts ofl 878
9, p. 78.
Acts of 1878-
9, p. 80.
208
PART I.— TITLE VIII.— CHAPTER I.
Compensation of collectors and receivers.— Miscellaneous provisions.
ARTICLE IX.
COMPENSATION OF COLLECTORS AND RECEIVERS.
Section* I Section.
936. Collector and receiver, commission. j 936. (a.) Local laws repeal 3d.
§936. (860.) Pay of tax officers. The commissions to be allowed to
each receiver and collector of State and county tax shall be as follows,
viz:
On all digests for the first $1,000 6 per cent
excess over $1,000 to $2,000 4
" 2,000tO 3,000 3
3,000 to 4,000 2% "
Acts of 1878- " " 4,000 to 6,000 2% '■
^ P- 78. «' " 6,000 to 8,000 2% "'
8,000 to 12,000... 2
12,000 to 18,000 1% "
18,000 to 36 000.. VZ "
36,000 : .134 "
936. (a.) Local laws repealed. All laws heretofore enacted .by the
Acts of 1878 General Assemblv, fixing; the commission of receivers of tax returns
and Collectors of taxes in certain counties, different from the rates here-
inbefore set forth, are repealed. And no tax collector shall in any event
receive any greater or different rate of commission, or rate of payment
for the collection of county taxes than he receives by this Article for
collecting State taxes. The commission of tax receiver, to be paidfrom
county taxes, shall be one-half the amount allowed by this Article to
tax collectors for collecting county taxes.
ARTICLE X.
MISCELLANEOUS PROVISIONS.
SfiCTION.
937. Comptroller may make rules.
938. Rules to be furnished tax officers.
939-. Rules to be published.
Section.
910. Bonds of tax officers sued on.
940. (a.) Tax offices separated.
§937. (940.) (861.) Comptroller-General to make rules for collectors and
receivers. The Comptroller-General has authority to make all needful
rules and regulations for the government of tax collectors and receivers,
and any other rules that may be necessary to insure the prompt and
faithful execution of the tax laws, if not in violation of or inconsistent
therewith.
§938. (941.) (862.) Furnish collectors and receivers with the same. These
rules, when made, shall be entered in a book in his office, kept for that
purpose, and be binding upon all successors until amended or repealed,
copies oi which shall be printed and furnished to receivers and collec-
tors at the time of sending them the forms required.
,§939. (942.) (863.) May bs published. They shall also be printed du-i
ring the month of March every year in a public gazette published at
the seat of government, if in the discretion of the Comptroller he shall
deem it beneficial.
§940. (943.) (864.) Bonds may be sued on. Nothing shall be so con-
strued as to make the collector's and receiver's bonds not subject to be
sued according to due process of law, but which is not to be done un
less some emergency should make it necessary.
§940. (a.) Tax offices separated. All local or special laws consolidating
km of 18/8 the offices of tax receiver and tax collector, in any of the counties in
-9. p. 76. ^j g gfc a £ e? are repealed, and the compensation of said officers shall bt
governed by the general laws of force in this State.
:
PART I.— TITLE VIII.— CHAPTER I. 209
Compensation of collectors and receivers. — Miscellaneous provisions.
General Note. — On the subject of taxes generally: 8 Ga., 23. In laws imposing
taxes if there be a doubt as to whether the intention of the Act was to levy a tax, that
doubt should absolve the tax-payer: 8 Ga., 23. State tax on imports held not invalid
in this case: 14 Ga., 439. But see, there can be no State tax on exports: 60 Ga., 61.
In the District Court of the United States an injunction was granted to prevent the
collection by a revenue officer of an illegal assessment of taxes: 35 Ga., 315. Income
of the Western and Atlantic Railroad is not subject to taxation: 35 Ga., 315. The
right of taxation is in the sovereign, the State : 41 Ga., 331. Power of a de facto govern-
ment to assess taxes, only avails while it maintains its supremacy: 41 Ga., 331. Tax
levied for educational purposes on liquor is not unconstitutional: 42 Ga., 416. See
section 1419 et sequiter, for taxes upon retailers of spirituous liquors. On the Act of
1870 directing Ordinaries to assess a tax to pay the salaries of the District Judges and
attorneys, where it was sufficiently definite : 44 Ga., 77. Non-residents are not required
by our law to pay taxes on notes held by them on citizens of this State: 44 Ga., 651.
Whether a citizen of Georgia is liable to pay taxes on an open account due him by a
non-resident: 45 Ga., 327-8. A sale by an assignee in bankruptcy does not divest the
State's lien for taxes : 46 Ga., 412. The declaration must set forth the facts in a suit to
recover back taxes, said to have been illegally collected : 46 Ga., 272. When an in-
junction was granted because the tax fi. fa. had the first lien: 46 Ga., 458. Not a
uniform tax, and an injunction was granted as against it: 47 Ga., 562. A municipal
corporation so far as the right of taxation exists in it is a grant and is called a franchise,
and a de facto government assessing a tax, afterward overthrown, cannot collect the
| tax : 41 G-a., 331. Injunction at the instance of tax-payers will not be granted, unless
I the acts of* its officers are ultra vires, fraudulent and corrupt : 43 Ga., 67. See notes to
sections 811 and 1422. City of Columbus could not assess tax to pay bonds except by
legislative enactment : 25 Ga., 610. A legislative Act rendering binding a subscription
1 of the city of Columbus to the stock of certain railroads : 30 Ga., 845. Augusta's canal
itax held valid : 5 Ga., 561. Illegal tax enjoined as against the Georgia Railroad and
Banking Company: 26 Ga., 651. A proceeding of the city council of Augusta should
have been enjoined in issuing a tax execution, not having complied with the prere-
i quisites : 31 (ia., 700. Injunction refused against a tax on gross sales, etc., by the citj'
| of Augusta: 37 Ga., 597. Where the city of Augusta could not assess a specific tax on
) the Insurance and Banking Company itself, and not on its capital : 37 Ga., 620. No
{ tax on notes held by and belonging to the residents of the town of Griffin on non-
i residents: 33 Ga., 113. The marshal of Griffin need not make an entry of no personal
j: property before he levies a tax fi. fa. on real property : 40 Ga., 39. The right of trial by
jury does not apply to a tax-paj^er who refuses to pay his tax : 23 Ga., 566. The Supe--
[ rior Court of Atlanta will not order a marshal to put a purchaser in possession of lands
in the city sold by a former marshal for taxes: 40 Ga., 49. The town of Albany can
! only impose an ad valorem tax on horses or mules sold by drovers: 41 Ga., 21. That
land in a city is used for agricultural purposes, is no ground for an injunction of the
tax on it: 53 Ga., 589. A physician of Savannah licensed by the State cannot be re-
quired under a penalty to takeout license by the city: 36 Ga., 460. Retailers of liquor
in Savannah must pay license and also the special tax: 42 Ga., 596. There can be no
set-off of illegal taxes paid in former years as against a tax execution for tax of later
years : 56 Ga., 448. Ordinary cannot buy in at tax sales, nor can he pay city taxes on
property purchased, out of the county funds: 51 Ga., 9. Taxes illegally assessed by
the town of Jonesboro: 63 Ga., 527. When cannot recover back taxes illegally yet
voluntarily paid : 61 Ga., 228-230.
General Note on Taxes and Taxation. — Business, taxation of: Cooley Tax.,
384. Construction of tax laws: Cooley Tax., 197. Of exemption: see note to $799.
Curative legislation, dispensing with strict compliance with statutes : Cooley Tax.,
223. Statutes exempting from taxation, when contracts: 5 Am. R., 351; 16 Am. D.,
51, n. Injunctions against: High on Inj., #553; Cooley Tax., 536; 23 Am. R., 622, n;
36/70; 11 Wall., 108; 15/547; 2 0., 575; 11/153, 773; 13/732. " Obligation of con-
tract"— change of tax law: 4 Pet., 514; 16/281; 16 How., 369; 18/331; 24/300; 7 Cr.,
161; lBk., 436, 474; 2/510; 4 Wall., 143,535; 8/430, 439; 13/264, 269; 15/454; 16/244;
20/36; 22/527; 3 O., 116, 595; 6/432; 7/284; 9/309; 13/358; Burroughs Tax., 108;
Cooley Tax., 52. No off-set against: 31 Am. R., 228; Cooley Tax., 13, 501. Public
purposes, taxation must be for: Cooley Tax., 42, 67, 76. What are such: Cooley
Tax., 81-102; Burroughs Tax., 10. Purpose must pertain to district taxed: Cooley
Tax., 104-123. Recovery back of money paid for: 12 Wall., 1 ; 15/75; Cooley Tax,.
565; 22 Am. R., 519, n; 29/32; 33/710. Situs of taxable property : Burroughs Tax..
40; Cooley Tax., 14, 269; Rorer on Tnter-State Law, 204. Tax titles : see Blackvvell
on Tax Titles, and note to §§891, 893.— Subject treated in : Cooley Const. Lim., 479.
See note to Mandamus, §3198, et seq.
14
210- PART I.— TITLE VIII.— CHAPTER II.
. : Uk ■. — mu ^^ .. ^-n, ■ , . . ! , — _ — .
Revenue from other sources.
■■ h «•• lAi.^.. rT— •■- ' 1 1 I ■ '
CHAPTER II.
REVENUE FROM OTHER SOURCES.
Section.
941. Sources of revenue, etc.
942. What moneys go into treasury.
Section.
943. What fees go into treasury.
§941. (944.) (865.) State's revenue from other sources. The sources from
1 which the State does or may derive revenue, other than by taxation,
are as follows :
1. The net earnings of the Western and Atlantic Railroad.
2. Dividends on the bank stock owned by the State.
3. Dividends or interests on the stock owned in the Main Trunk
Railroad.
4. Sale of State bonds at a premium.
5. The use by individuals of any other property of the State.
6. Receipts from military or other claims against the United States.
1 7. Receipts from assets of the Central Bank and other old claims.
8. Receipts on claims from tax collectors or other officers for previous
years, which were in litigation or regarded as insolvent,
i 9. Dues for the sale of reverted or other land to which the State may
„ have the title.
10. Fees which the secretaries of the Governor, the Secretary of
State, the Treasurer, the Comptroller-General and Librarian may re-
ceive for official duties.
§942. (945.) (866.) Miscellaneous revenue. All the receipts from the
resources mentioned in the preceding section, all fees not specially
awarded to any particular officer, all tines and forfeitures not otherwise
'disposed of, all moneys collected from any source or on any account, to
i - which the State is entitled, not otherwise directed, must be paid into
the State treasury.
§943. (946.) (867.) Fees to be paid to treasurer. The fees which officers
are allowed to charge, and which, when collected, must be paid to the
Treasurer, are as follows :
1. Those by the secretaries of the Governor:
A grant for 100 acres or under $1 00
A grant for over 100 acres or under 300 acres 2 00
A grant for over 300 acres or under 500 acres 3 00
A grant for over 500 or under 1,000 acres.. 4 GO
A grant for 1,000 acres and over, one per cent, per acre for every additional acre.
Affixing the great seal of the State, by order of the Governor, to any thing of a private nature. 2 00
For every examination of records per request ." 50
Administering oath of office to a salaried officer and giving certificate thereof 1 00
Entering a testimonial 50
Attaching the seal of the Executive department 1 00
Certified copy of any record not more than 300 words 1 00
If more than*300 words, per 100 words • 10
/Z^ue^c^e^L 2. Those by the Secretary of State :
y For a grant of land and affixing the seal thereto, the same as is allowed the secretaries of
f&It- % ? tne Governor, according to the number of acres.
/7 - V' vJ ' For registering each grant $ 50
For registering bond or other similar writing — 1 00
For a testimonial without the great seal 1 00
For a testimonial with the great seal _ 2 00
Affixing the great seal to any other paper 1 00
For a certified copy of a grant of land 1 00
For a certified copy of any other paper not of more words 1 00:
For more words, per hundred 10i
For every search per request 25
3. Those by the Treasurer :
For every extract or copy from any book, minutes, or file of office, not more than 300 words. . .-$1 00
For every additional 100 words 10
For every search by request 25
4. Those by the Comptroller-General :
Every extract or copy from any book, minutes, or file of Office, not more than 300 words #1 OC
For every additional 100 words K
For every search by request 1C
PART L— TITLE VIII.— CHAPTER III.
211
State depositories.
5. Those by the Secretary of State as Surveyor-General :
For examining a plat *• I 50
For recording a plat 1 25
For recording a plat of a town, township, or village 10 00
Transmitting a caveat to Governor, and attending thereon 1 00
Certified copy of any original record not more than 300 words 1 00
For every additional 100 words. 10
Certified copy of an original warrant 50
Issuing a certificate of record 50
For every search per request 25
6. Those by the Librarian
&£k*~s.
Certifying to the existence or contents of any manuscript, map, or other document entrusted /^^//V*^'
tohiskeeping $100 / /
Furnishing copies of his catalogue of books 50
See Constitution of 1877, Art. 6, Sec. 2, par. 7,
CHAPTER III.
STATE DEPOSITORIES.
■. y^vZ.-c/ /♦//?
Section.
943. (a.) Governor names depositories.
943. (b.) Terms of deposit.
943. (c.) Tax collectors may pay to deposito-
ries.
943. (d.) Depositories to give bond.
Section.
943. (e.) Funds subject to check, etc,
943. (f.) Tax collectors may still pay at treas-
ury.
943. (g.) Law of this Chapter does not affect
treasurer's bond.
.Cue^</
§943. (a.) Governor names places of deposit. The Governor of the State Acts of 1878^
of Georgia shall name and appoint a solvent chartered bank, of good -9, P J|- ^
standing and credit, in each of the following cities of this State, to-wit : v^^/
in the cities of Atlanta, Athens, Augusta, Columbus, Macon, Savannah,/*/^ J*Fyf^* 'fjjc
Rome, Americus, Albany, Hawkinsville, Gainesville, Griffin and La-^*^^ 1 ^//,
Grange, which shall be known and designated as State depositories. ^fes^^^^'v' v
§943. (b.) The Governor to make terms. Said State depositories shall Acts of vm&
be appointed for the term of four years from the^ date of their appoint- _ ^^ 8 ' <££^cji-^
ment, and shall be liable to be removed by the Governor, in his ctiscre- , / /cj >
tion, for any neglect of their official duty, and they shall receive no>v * ~^ '// '
salary or fees from the State of Georgia, but it shall be the duty of the 2-<f, *-p< 2->&
Governor to make with said depositories the most advantageous con- /y£^
tracts he can for interest to be paid by them to the State for the use of /2 9 /jj-
the State's money which may be deposited therein, as hereinafter pro- /%„' y /
vided by this Chapter: Provided, that no officer of this State shall be
allowed to receive any commission, interest or reward to himself from /^— ,£V,
any source for the depositing of such money in such depositories, or for ~/ , i
continuing such deposits. But the receiving of any such benefit by any^^^^// '
officer shall be a felony punishable, hj imprisonment in penitentiary '
for not less than seven nor longer than twenty years, and disqualifica- .
tion to hold office in this State.
§943. (c.) Tax collectors may pay funds at depositories. The Governor Acts of ists-
shall, at the time of appointing the State depositories, make a list of -9 ' p- 88-
the counties whose tax collectors shall be instructed to pay State funds
into each depository, and said tax collectors shall pay into no other de-
pository than the one named by the Governor, and the Governor shall
also make known the apportionment of counties by a proclamation
duly published in the city where such depository is located, giving the
name of the depository, and the names of the counties whose tax col-
lectors shall be instructed to pay into said depository all moneys col-
lected by them for and on account of State taxes.
§943. (d.) Depositories to give bond. Each of said depositories shall, Acts of 1878
before entering upon the discharge of their duties by their proper offi- _9 > p- 88 -
cers, execute a bond with good and sufficient securities, to be approved
by the Governor, in a sum of fifty thousand dollars. Said bond shall
212 PART L— TITLE VIIL— CHAPTER III.
State depositories.
be conditioned for the faithful performance' of all such duties as shall
be required of them by the General* Assembly, or the laws of this State,
and for a faithful account of all the public money or effects that may
come into their hands during their continuance in office. Said bond
shall be filed and recorded in the Executive office, and a copy thereof,
certified by one of the Governor's secretaries, under the seal of the Ex-
ecutive department, shall be received in evidence in lieu of the origi-
nal in any of the Courts of this State. And said bonds, when given,
shall have the same binding force and effect as the bond now required
by law to be given by State Treasurers, and, in case of default, shall be
enforced in like manner.
§943. (e.) Funds subject to check, etc. Said depositories shall hold all
.Acts of 1878 funds received by them for and on account of the State, subject to the
' ' P< check or order of the State Treasurer, and shall render to the State
Treasurer, on the first day of every month, a statement of the money
on hand belonging to the State, showing the time when, and from
whom, received, together with a statement and balance sheet showing
the exact condition of its account with the State Treasurer on that day;
and whenever any tax collector shall make a deposit in said deposito-
ries, they shall give to said tax collector a receipt, which shall be a good
and sufficient voucher to said collector, and they shall mail to the State
Treasurer a duplicate of the receipt so given to said tax collector, and
so soon as the treasurer shall receive said duplicate receipt, he shall
issue his certificate in favor of the depositing tax collector, and transmit
the same to the Comptroller-General, who shall pass the amount therein
mentioned to the credit of said tax collector, and at once mail to him a
receipt for said amount.
§943. (f.) Tax officers may also pay at treasury. Nothing contained in
.Acts of 1878 this Chapter shall be construed to. prevent tax collectors from paying
-j-9, p. 88. state funds directly into the State treasury. And it shall not be lawful
for the State Treasurer to deposit such funds in any bank or other de-
pository except those established under this Chapter, and he shall, by
check or other proper means, draw from said depositories such amounts
only, and at such times only, as the necessities of his department may
require.
§943. (g.) Treasurer's bond not affected. Nothing contained in this
Acts of 1878 Chapter shall be held, taken or construed as affecting, altering or chang-
-9, p. 88. j n g th e provisions of existing laws as to the bond of the State Treasurer.
PART L— TITLE IX.— CHAPTER I.
213
The public debt.
TITLE IX.
THE PUBLIC DEBT*
CHAPTER I.
THE PUBLIC DEBT.
Section.
944. State bonds, how authenticated.
945. Amount of bonds, time of payment.
946. Coupons, how signed and paid.
947. Bonds must accompany coupon, etc.
948. State bonds, where payable.
949. Bonds may be exchanged, when.
950. Bonds taken up not to be re-issued.
951. New bonds may issue for lost ones.
952. On what showing new bonds issue.
.953. State must be indemnified.
Section.
954. Stolen bonds, how renewed.
955. Bonds, etc., paid off, how kept.
956. Payment of bonds provided for.
957. Surplus set apart.
958. Overplus paid to bonds not due.
959. Bonds paid before due to be reported.
959. i a.) Registration of bonds.
959. (b.) Book of registration.
959 (c.) Registered bonds, how negotiated.
§944. (947.) (869.) Bonds and certificates, how authenticated. All bonds
or certificates of the State for the State debt must be authenticated by
the signature of the Governor, the Secretary of State, and stamped with
one side of the seal of the State, to-wit, that side which has on it the
motto, " Wisdom, Justice, and Moderation."
§945. (948.) (870.) Amounts of, and how payable. They shall be, unless
otherwise specially ordered by the General Assembly, in sums of five
hundred and one thousand dollars each, payable in twenty years after
their date, bearing interest at six per cent, per annum, which interest
is payable semi-annually by coupons thereto annexed.
§946. (949.) (871.) Coupons, how signed, and paid. They may, before
or after issued, be presented to the State Treasurer, who shall sign, in
his official capacity, all the coupons thereto attached, which then may
be paid at maturity by the treasurer without the presentation of the
bond, or further warrant or authority.
§947. (950.) (872.) When unsigned not to be paid. If coupons are not
thus signed, they shall not be paid, unless accompanied by the bond to
which they belong, and before payment shall be by the treasurer
• detached.
§948. (951.) (873.) Public debt, when paid. The principal and interest
shall be made payable at such place in this State or other of the United
States as the Governor may in his discretion direct, and he may direct
the principal payable at one place and the interest at another.
§949. (952.) (874.) Bonds payable out of the State may be exchanged.
Where citizens of this State become possessed of State bonds payable
out of this State, the Governor may give in exchange for them bonds
payable herein, provided there is no loss to the State by the exchange,
and the expense thereof, if any, is borne by the holders of the bonds.
§950. (953.) (875.) Bonds taken up not to be re-issued. When such
exchange occurs, the original bonds so taken up shall not be re-issued
on any account whatever, unless specially provided for by the General
Assembly.
§951. (954. ) (876.) Lost bonds or coupons. When any bond and coupon, Acts of ists
or coupons alone, shall be lost, mutilated, or destroyed, the Governor _9 > p* 59 -
may issue to the holder a new bond, with proper coupons attached ; or
if coupon alone be lost, mutilated, or destroyed, he may direct the
treasurer to issue new coupons in lieu of such coupons as may be lost,
mutilated, or destroyed.
-See Act of 1843, C p. 895-7 ; Act of 1850, C. p. 898.
214 PART L— TITLE IX.— CHAPTER I.
The public debt.
§952. (955.) (877.) New bonds, how obtained. When mutilated, the
Acts of 1878 mutilated bond, or coupon, must be surrendered; when lost or destroyed,
-9, p. 58. £k e h^er must make affidavit of such fact, that they were his, in his
own or some other right, at the time of the loss or destruction; if lost,
that he has made diligent search without avail, and despairs of ever
finding them.
§953. (956.) (878.) Bond and surety to be given. Having made such
affidavit, he shall then, before receiving the new bond, or coupon, give
bond and surety to the Governor in a sum double the amount of the bond
and coupon, or coupons alone so issued, as the case may be, conditioned
to save the State harmless on account of issuing such new bond,- and
coupon or coupons only, as the case may be.
§954. (957.) New bonds in lieu of those stolen. [The Governor is author-
(a) Acts of ized to issue a new bond or bonds in lieu of a bond or bonds of the State
1866, p. 18. w hich mav have been stolen, upon the holders making affidavit as pro-
vided for in section 952 : Provided, said holders may have given or shall
give twelve months' notice of the loss or theft of said bonds, fully de-
scribing the same, at the treasury of the State, at least twelve months
prior to the time when said new bonds may be or shall be issued: pro-
vided, that no new bond shall be issued for or in lieu of any lost or
stolen bond until the owner of such bond shall first give to the State a
bond with security, to be approved by the Governor for the time being,
fully indemnifying the State against the payment of the bond so lost
or stolen], (a.)
§955. (958.) (879.) Bonds, etc., when paid, how disposed of. When bonds
or coupons are paid, they must be stamped as paid, and preserved in the
treasurer's office with the same care as the funds of the State.
§956. (959.) (880.) Appropriations for bonded debt. An amount of
Const, of money stands annually appropriated, sufficient to pay the principal and
Sec!'it rt ' 7 ' interest of any bonded bebt of the State becoming due during the year.
§957. (960.) (881.) Surplus in treasury appropriated tobonded debt. Any
surplus in the. treasury after allowing for all the annual charges against
it, including such claims, is likewise appropriated to the same object.
§958. (961.) (882.) Governor may apply surplus. Whatever amount
may remain from the appropriations contained in the two preceding
" sections more than enough to pay such debts may be applied, by the or-
der of the Governor, to redeeming any particular class of bonds not due
as he may order, and which, in his judgment, it is to the interest of the
State to prefer and anticipate.
§959. (962.) (883.) Bonds redeemed before due. All bonds redeemed be-
fore maturity must be by the Governor annually reported to the Gen-
eral Assembly, particularly described, and the terms upon which they
were so redeemed.
[Sec. (963.) Repealed by Act of 1872, p. 64.)
§959. (a.) Registration of State bonds. Any holder of the bonds of this
State, whether in his own right or in a fiduciary capacity, may have
> the same registered at the office of the State Treasurer upon applica-
tion and presentation of said bonds to the treasurer as hereinafter pro-
vided.
§959. (b.) Booh of registration. It shall be the duty of the treasurer to
procure and provide, at the expense of the State, a suitable book or
books in which, upon application and presentation of a bond or bonds
as aforesaid, he shall enter, in a manner to be of easy and ready refer-
ence, a description of said bond or bonds, giving number, series, date of
issue, denomination, by whom signed, and such other data as may be
necessary for the ready identification thereof, together with the name
of the person registering the same, the character or capacity in which
such person holds said bond or bonds, and for whose benefit the same is
PART L— TITLE X.— CHAPTER I.— II.
215
Public buildings.— The lands of the State.
Tn ST
or are registered. And the said treasurer shall enter upon each and
every bond so registered as aforesaid, the date of said registration, by
whom registered, and in what character or capacity, and shall sign said
entry officially ; and shall cut, with a stamp prepared therefor under
the direction of the treasurer, the letter "R" in the face of said bonds
so registered, and such person or persons having such bond or bonds so
registered shall be required to pay to the treasurer the sum of fifty
cents for each bond so registered, which said registry fee shall be paid
into the treasury by the said treasurer.
§959. (c.) Registered bonds, how transferred. None of said bonds shall,
after such registration, be negotiable by delivery, but said bonds may,
nevertheless, be negotiated or transferred by the person in whose name
they are registered, by re-registration in the name of the person to
whom the same are to be transferred or negotiated.
TITLE X.
PUBLIC PROPERTY.
CHAPTER I.
PUBLIC BUILDINGS
Section.
960. Buildings owned by the State.
Section.
961. Buildings the State is interested in.
§960. (964.) (885. ) Buildings owned by the State. The buildings and 1870, pp.
those appurtenant thereto belonging to the State, are — 494 ' 49 °"
[The State Capitol, at Atlanta.] (a.) Jt*r~- <*^u**l./qjl ~ sr (b) Acts of
[The Governor's Mansion, in the city of Atlanta.] (b.) 502%03 P "
The State Arsenals at Milledgeville and Savannah, donated by Act ^g^
of 1870, page 455 ; the Deaf and Dumb Asylum at Cave Spring ; the d ^_^ m j^^S>
Lunatic Asylum near Milledgeville ; the Penitentiary at Milledgeville ; 1/7 /^
the buildings of the Western and Atlantic Railroad. '? *- ~~
The old Capitol and Executive Mansion at Milledgeville, with the
ground attached to each.
§961. (965.) (886.) Partly owned by the State. The State has an inter-
est in —
The University of Georgia, at Athens.
The Asylum for the Blind, at Macon.
CHAPTER II.
* THE LANDS OF THE STATE.
Section 962. Lands reserved to the State.
§962. (966.) (887.) Lands owned by the State. The lands heretofore
specially reserved to the State are —
The lands known as the "Macon Reserve," on the Ocmulgee river;
the lands known as the "Mcintosh Reserve," on which is situated the
Indian Spring ; the lands known as the "Old Agency Reserve," on the
Flint river ; a quantity of land on Flint river, opposite the Old Agency ;
one mile square on the Chattahoochee river at Mcintosh Ferry ; one
21j6
PART I.— TITLE X.— CHAPTER III.
The Western and Atlantic Railroad and its government.
mile square at Marshall's Ferry on Flint river, including the ferry ; five
miles square on Chattahoochee river at Cusseta Falls, including the
falls ; all islands contained in any of the navigable waters not disposed
of, and the western bank of the Chattahoochee river to high-water
mark, where it forms the boundary between Georgia and Alabama ; so
much of the Okefenokee swamp as is in this State and ungranted ; the
lots whereon all the public buildings of the State are erected; the frac-
tional parts of surveys created by the different land divisions which
are not granted or otherwise disposed of; all lands omitted .to be sur-
veyed, granted or sold ; parcels of land in certain cities, to-wit :
In the city of Atlanta ;
In the city of Columbus ;
In the city of Chattanooga.*
The city of Atlanta cannot take lands owned by the State for a street: 53 Ga., 120-3.
[By Act of 24th October, 1870, (see Acts of 1870, p.. 423,) the Western and Atlantic Railroad, with
all its houses, workshops, depots, rolling stock, and appurtenances of every character, were leased
for twenty years ; and by Act of December 14th, 1871, (see Acts of 1871-2, p. 79,) all laws and resolu-
tions continuing in existence any officer of said railroad as an officer of this State were repealed.
Yet as these laws are being used in winding up the business of said road, and as an emergency
might arise when said laws relative to said railroad might be further needed, the revisers of the
Code have deemed it best to retain them.]
CHAPTER III.
THE WESTERN AND ATLANTIC RAILROAD AND ITS GOVERNMENT.
Section.
963. W. & A. R. R., belongs to State, etc.
964. Obligations relative to W. &. A. R. R.
965. What laws apply to W. & A. R. R.
966. Former laws still of force.
967. Laws applicable to W. & A. R. R.
968. Appointment of superintendent.
969. Superintendent's bond.
970. His oath and commission.
971. Superintendent's authority.
972. Rules of road to be recorded, etc.
973. Such rules are law.
974. Where the road may be sued.
975. Demand must be made before suit.
976. Books of road prima facie evidence.
977. Debtors to road, public debtors.
97*. Appointment, etc., of treasurer.
979. Treasurer's oath.
980. His bond, oath and bond, where filed.
981. Treasurer's duties specified.
■982. Auditor's appointment, etc.
933. Auditor's oath.
984. His bond.
985. His bond and oath, where filed.
986. Auditor's duties specified.
987. Remedy against officers W. &. A. R. R.
Section.
98-4. Compellable to give other security.
989. Agents must report monthly.
990. Officer failing to pay, etc., dismissed.
991. Accounts of dismissed officers.
992. Indebtedness of defaulters, etc.
993. Oath of all agents of the road.
994. Their bonds.
995. Bonds renewed annually.
996. Settlements with agents.
997. Governor to examine bonds, etc.
998. Conductor's oath.
999. No credit to be given for freights.
1000. Conductor's settlement.
1001. Disbursements, how made.
1002. How auditor's decisions reviewed.
1003. Proceeds of road, how disposed of.
. 1004. Useless iron and tackle may be sold.
1005. Sale may be for cash or on credit.
1006. No officer of road can buy at sale.
1007. Sale bill to be kept and reported.
1008. Useless land of road may be sold.
1009. Who may go over road free of charge.
1010. Law of road enforced by superintendent.
1011. Transportation of lime.
1012. Stock gaps may be built.
§963. (967.) ('888.) Western and Atlantic Railroad the property of the
State. The Railroad communication from Atlanta, in Fulton county,
to Chattanooga, on the Tennessee riverj is the property of this State
exclusively, and shall be known as the Western and Atlantic Railroad.
What is the relation the State, so far as her interest is concerned, bears to the West-
ern and Atlantic Railroad : 54 Ga. , 635.
§964. (968.) (889.) Relation of State to the Western and Atlantic Railroad.
The State occupies trie same relation to said road, as owner, that any
company or incorporation does to its railroad, and the obligations of the
State to the public concerning said road, and of the public to said road
are the same as govern the other railroads of this State, so far as is con-
sistent with the sovereign attributes of this State, and the laws of
force for its conduct.
When the State engaged in the carrying business on the Western and Atlantic
Railroad, it assumed obligations and liabilities incident to that business as when carried
^Considerable poAions of the above mentioned reservations have been conveyed by the State to
private companies or individuals, which will appear by reference to the proper records.
PART L— TITLE X.— CHAPTER III. 217
The Western and Atlantic Railroad and its government.
on by individuals, and the remedy against it is by suit against the superintendent of
the road when the claim is not otherwise adjudicated: 28 Ga., 180. The plain ti ft in
such suit is not restricted to the amount claimed when he presented his account to the
superintendent for settlement, he recovers according to his proof under the law : 28
Ga., 180.
§965. (969.) (890.) Road laws and penal laws apply to Western and At-
lantic Railroad, proviso. All the public road laws and penal laws touch-
ing the railroads of this State, whether to obligate or protect, apply to
the State Road, unless specially excapted, or some other provision is
prescribed in lieu of some one or more thereof.
The Act of 1856 (C. p. 154), does not apply to the Western and Atlantic Railroad : 23
Ga., 436. The Western and Atlantic Railroad is subject to the same liabilities for
damages as other railroads: 34 Ga., 424. Section cited and Construed: 53 Ga., 124. -
§966. (970.) Laws applicable to Western and Atlantic Railroad. [AllHJft oJS 83 '
laws of force regulating the liability of railroad companies in this State '
for damages done by the running of locomotives, cars, and other ma- ^ 2 -3 Ct p of
chinery, are hereby declared to apply equally to the Western and At- 182.
lantic Railroad ; and in the bringing of all suits against the Western
and Atlantic Railroad, the same shall be regulated by the laws in ex-
istence on that subject at the time of the adoption of this Code.] (a.)
Where the damage for which the suit was brought was received before the adoption
of the Code : 40 Ga., 416. What action maintainable under this section by the widow
of an engineer killed by the colliding of two trains : 34 Ga., 422.
§967. (971.) (891.) Preceding laws of force. All laws heretofore enacted, Acts of 1837,
having a special or local application to said road, and in force at the p ' 62 '
time of the adoption of this Code, are kept in force, unless herein
repealed expressly, or by implication.
Section cited; the remedy against the superintendent and officers of the Western
and Atlantic Railroad is the same as against tax collectors and receivers : 46 Ga.,
350-360.
§968. (972.) (892.) Superintendent appointed by Governor. The principal Acts of 1851
officer of said road shall be styled the superintendent, who is appointed ~ 2, p * no "
by the Governor, and holds his office during his term, unless sooner W A cts of
removed at his pleasure. [The salary of the superintendent shall be
five thousand dollars per annum.] (b.)
He is not subject to garnishment : 37 Ga., 240.
§969. (973.) (893.) To give bond and security. Before entering on the
duties of his office, he shall give bond and security, to be approved by
the Governor, in the sum of twenty thousand dollars, which shall be
filed in the office of the Comptroller-General and recorded therein.
§970. (974.) (894.) To take oath. He shall also, at the same time,
besides the oath required of all civil officers, take and subscribe before
the Governor the following oath, which shall be filed in the Executive
office : " I, -, swear that I will faithfully and impartially perform
I all the duties of my office ; that I will make no appointment, nor do
any act from fear, favor, reward, or the hope thereof, but in all things I
will be governed solely with regard to the interest of the State of Geor-
gia, and in the discharge of my duties I will neither make, nor permit
to be made, any discrimination, unless so directed by legislative
authority, in favor or against any railroad company, or other persons
or parties having business connections with, or relations to, said road.
So help me God.""
§971. (975.) )895. Powers of superintendent. The superintendent has Acts of i85i
authority— • -2, p.m.
1. To conduct all the operations of said road connected with its re-
pairs, equipment and management, including its financial affairs.
2. To appoint or remove all the subordinate officers, subject to the
approval of the Governor, except the auditor and treasurer.
218 PART I.— TITLE X.— CHAPTER III.
The Western and Atlantic Railroad and its government.
3. To fix the rate of passage and freight, and to make all necessary
arrangements touching such rates and other business with other rail-
roads.
4. To contract for and purchase machinery, cars, materials, workshops,
and all other contracts necessary for the general working and business
of said road not exceeding three thousand dollars, and over that amount
subject to the approval of the Governor in writing.
Section cited and construed: 62 Ga., 198-200.
5. To make contracts with the Government of the United States, with
the consent of the Governor, for the transportation of the mails over
said road.
6. To arrange the schedules for running trains at such times, either
by day or night, as he may deem expedient.
7. To settle all claims against said road, with the approval of the
Governor.
8. To sue officially for any claim due the State on account of said
road, and defend all brought against the road.
9. To make all necessary rules for the proper conduct of the business
of the road and the enforcement of discipline.
10. To impose penalties for a violation of said rules and for breaches
of duty by all persons in the employment of the road.
11. To see that the books and accounts of the road are so kept as at
all times to show accurately its fiscal affairs.
12. To have settlements weekly with all fiscal agents of said road for
all money received by them, by himself or through some authorized
person, and to discharge them for neglecting or refusing to do so.
. 13. To fix the compensation of all employees of said road, with the
approval of the Governor, whose compensation is not fixed by law.
14^ To draw his warrant on the treasurer in favor of claimants accord-
ing to the law.
15. To sue and cause all moneys belonging to or collected on account
of the road to be paid promptly to the treasurer.
16. To exercise a general supervision over all officers, agents, and
employees under his charge, and see that they strictly comply with all
the requisitions of the law.
17. To make out and transmit to the Governor a quarterly statement
exhibiting the receipts and expenditures of the road, and once every
year a full statement of all the transactions of the road in detail, which
report shall be published in one or more of the public gazettes at the
seat of government and at the city of Atlanta.
§972. (976.) (896.) Rules to be recorded, printed and furnished to officers.
Acts of i85i The rules adopted by the superintendent for the government of said
-52, p. in. roa( j gh a ii De recorded in a book kept for that purpose, shall be printed
and posted in a conspicuous part of his office, and copies placed in the
hands of each officer of the road, who shall also be promptly supplied
with copies of any alterations thereof.
Parol evidence of: 28 Ga., 111.
§973. (977.) (897.) Force of said rules. Such rules shall have the force
and effect of law when necessary to carry into full effect any law in
regard to said road and to improve its organization when not inconsis-
tent with the law.
This section referred to : 35 Ga., 107.
§974. (978.) (898.) Suits against Western and Atlantic Railroad. All
Acts of i85i suits against the road must be brought against the superintendent in
-2, p. in. kig official capacity, in the county of Fulton, where the office of said
§ ' ' road is located, except in those cases of claims where, by the law, other
PART L— TITLE X.— CHAPTER III. 219
The Western and Atlantic Railroad and its government.
dlroads are allowed to be sued elsewhere, but under no circumstances
e suits against such road to be allowed against such road, its officers
[ agents in the State of Tennessee, beyond the right, if any, that may
dst under the authority granted to this State to extend said road into
ennessee.
Under the Act of 1851-2, a rejection of a claim by the late chief engineer did not
ititle the party to sne the superintendent : 19 Ga., 543. Suit against the Western and
jtlantic Railroad for loss of tobacco shipped on said road should be brought against
lie superintendent in Fulton county, where the office was located : 34 Ga., 543.
§975. (979.) (899.) Demand necessary before suit brought. No suits shall
3 brought against the superintendent until a demand has been made
ipon him for payment, accompanied by a statement of the nature of
lie claim, and ten days shall be allowed the superintendent to pass
pon such claim before suit shall be brought.
Demand on the superintendent is a condition precedent; 19 Ga., 544-5. Plaintiff
i a suit is not restricted to the amount demanded, but may recover according to the
•oof : 28 Ga., 180.
§976. (980.) (900.) Books of road prima facie evidence. In suits pending Acts of 18.56,
' to be brought by or against said road, the books of said road shall be p - 64 -
'firm facie evidence of what they contain pertinent to the points in
sue.
J §977. (981.) (901.) Its debtors public debtors. All debtors to said road Act&ofi858,
re as debtors to the State or public, and when any question arises war- p * 64 -
anting it, the right or obligations of both parties are to be determined
(pon by the laws governing such relation.
I A debt due the Western and Atlantic Railroad is to be paid next after funeral ex-
bnses, as provided in $2533, p. 3: 46 Ga., 359; 38/171.
| §978. (982.) (902.) Treasurer, by whom appointed. The Governor shall Acts of i85i
ppoint an officer for said road, who shall be styled the treasurer, who ~ 2, p ' 112 "
(olds his office for the same time and term that . the superintendent
pes.
J §979. (983.) (903.) His oath. Before entering on the duties of his Acts of issi
3ice, besides the oaths required of all civil officers, he shall take and ~ 2 > p - 112 -
ibscribe before the Governor the following oath: "I, , do swear
lat I will faithfully and diligently receive, keep and disburse the funds
I the State Road according to law, in my capacity as treasurer, and do
LI other acts that are or may be required of me by law as treasurer of
lid road, to the best of my skill and knowledge. So help me God."
§980. (984.) (904.) Bond, and security. He shall at the same time give
ond and security, to be approved by the Governor, in the sum of one
undred thousand dollars. Said bond and oath of office shall be filed
nd recorded as the superintendent's.
§981. (985.) ( 905.) Treasurer's duties. It is the duty of the treasurer — Acts of issi
1. To take custody of all funds appertaining to the road, to receive - "'
LI moneys from officers or agents holding the same and receipt them.
2. To receive all such sums as may be appropriated by law for the use
f the road.
3. To pay all warrants drawn by the superintendent in the terms of
ie law.
4. To pay the State Treasurer monthly all balance in th^ treasury
fter paying all the current expenses of the road and other lawful claims
pon it, and to take his receipt for the same, retaining such amount
3 the superintendent may direct.
5. To keep a book or books to enter all his receipts and payments
nd other official transactions.
6. To make a quarterly statement to the superintendent of the re*
3ipts and disbursements of his office, which shall be published with
ie superintendent's report to the Governor.
220 PART I.— TITLE X— CHAPTER III.
The Western and Atlantic Railroad and its government.
7. To discharge such other duties as the laws do or may require.
§982. (986.) (906.) Auditor appointed by Governor. The Governor shall
4fp.°ii2 851 appoint an officer for said road who shall be styled the auditor.
§983. (987.) (907.) His oath. Before entering on the duties of his
office, besides the oath required of all civil officers, he shall take and
subscribe before the Governor the following oath : " I, , swear that
I will promptly, justly, fairly and impartially approve or reject all
claims against the State Road presented to me for such purpose, and
that I will faithfully and diligently discharge all other duties that are
or may be required of me by law as auditor, to the best of my skill and
knowledge. So help me God."
§984. (988.) (908.) Give bond and surety. He shall, at the same time
give bond and surety, to be approved by the Governor, in the sum o:i
twenty thousand dollars.
§985. (989.) (909.) Bond and oath filed and recorded. Such bond and
oath of office shall be filed and recorded as the superintendent's.
§986. (990.) (910.) Auditor's duties enumerated. It is the duty of th<
auditor —
1. To examine and approve or reject, without unnecessary delay, al
Acts of i85i bills and accounts against said road before the superintendent shal
p. 113. draw a warrant for the same on the treasurer.
2. To keep a book to enter all accounts passed, stating the person
amount, account, and time.
3. To examine, supervise a*nd control all books kept by the subordi
nate accounting officers or clerks of the road.
4. To discharge such other duties as the laws do or may require.
§987. (991.) (911.) Remedy of the State against officers of Western and Ai
Acts of 1858,- laniic Railroad. The remedy of the State against the superintendent
p - 62, the treasurer, auditor, and other officers and agents, is the same as agains
tax collectors or receivers.
Section cited: 46 Ga., 342.
§988. (992.) (912.) Additional bond may be required. The Governc
Actsofi868 may require each of such officers to give additional bond and surety o
p. 63. ^g game terms and conditions that he may require it of the Comp
troller-General or the State Treasurer.
§989. (993.) (913.) Monthly reports of agents. Each agent of such roa
Acts fi858 nav ^ n g ^ ne f un( is thereof in his hands shall make out monthly, an
p. 63. 'from month to month, on such day as the superintendent may requir
a full statement of his account, and particularly specify what amour
of cash on hand, what amount due from freight delivered or to be d>
livered, showing the full amount due from all sources whatever, an
shall sign such account.
§990. (994.) (914.) Defaulting officer or agent dismissed. Any officer (
agent failing to pay over the funds collected by him weekly, or failhi
to furnish the superintendent with a monthly statement of the fina
cial condition of his office, except for providential cause, shall \
immediately dismissed by the superintendent.
§991. (995.) (915.) Proceedings on a dismissal. When such dismiss
Acts of 1858, shall take place, an account shall at once be had of all the freight c
p ' 63, hand, giving the person dismissed a credit or receipt therefor, so as
show the amount of his indebtedness.
§992. (996.) (916.) Amount due by defaulter, how treated. As soon as i
Acts of 1858, agent, or any other person having funds of the road unaccounted for,
p ' 63, in default, and fails to pay over said funds on demand made by tl
superintendent, or by his authority, or shall abscond or conceal himse
or in any other way evade or prevent a settlement, said officer slu
promptly cause the true amount due by such person to be ascertaine
,i~
PART I.— TITLE X.— CHAPTER III. 221
The Western and Atlantic Railroad and its government.
nd transmit the same to the Comptroller-General as earnings of the
)ad, stating also the date of the default.
Duty of the Comptroller-General ; 46 Ga., 342.
§993. (997.) (917.) Oaths of agents. Every agent of said road, before
ntering on the discharge of his duties must, besides the oath required
f all civil officers, take and subscribe before the superintendent, who
3 hereby made an officer for such purpose, the following oath :
"I, , swear that I will faithfully perform all the duties of my
ppointment that are or may be required of me by law, to the best of
ly skill and knowledge, and that I will render a true account of my
fficial conduct, and of all moneys received by me as such, and pay the
^me over to the person authorized to receive them, as often as the law
aay require. So help me God."
§994. (998.) (918.) Bonds of agents. They shall at the same time give
ond and surety, payable to the Governor and his successors in office,
o be approved by the superint ndent, in such sum as he may require.
§995. (999.) (919.) Disposition of affidavit and bond. The oaths shall
»e filed in the office of the superintendent, the original bonds trans-
nitted to the Comptroller-General, and copies retained by the superin-
endent in a book kept for that purpose in his office.
§996. (1000.) (920.) Bonds renewed annually. Such bonds shall be re-
lewed annually, by the tenth day of January, after a full and satisfac-
ory settlement has been had with the a*gents, and not before.
§997. (1001.) (921.) Settlements with agents. Said settlement must be
n writing and signed by the agent and superintendent, and shall con-
tain a full statement of the agent's account with the road, whether for
i;ash received, freight on hand, or from any other source whatever.
: §998. (1002.) (922.) Governor to examine bond, etc. The Governor shall
3xamine every bond transmitted to the Comptroller-General by the
superintendent, and in case of defect therein, as to matter or surety,
nay order another bond given in lieu thereof to the superintendent,
md he or the superintendent may at any time, when in the judgment
)f either the interest of the State requires it, require such officer to
*ive additional bond and sureties, as he requires of other officers.
§999. (1003.) (923.) Conductors oath. Every conductor must, in the Acts of i$ii
Same manner, take and subscribe this oath : "I, , swear that I will ~ 6 - p- 157 -
faithfully discharge the duties of my office to the best of my skill
|and knowledge, and that I will pay over all the money that may come
to my hands belonging to the State Road, as required by law, or the
prder of the superintendent. So help me God."
§1000. (1004.) (924.) No credit for freight. No agent at any station of Acts of 1851
said road is permitted to give credit for any freight or any produce, * 2 > p- 113 -
jgoods, or other commodity conveyed, but shall collect the freights be-
fore the articles are taken away, except in cases where the freight, by
arrangement, are chargeable to some other railroad company.
§1001. (1005.) (925.) Conductors settlements. Every conductor of pas- Acts of i85i
senger or freight trains shall make a settlement of the ticket and _2 > p- 11L
money received by them with the treasurer at the end of each trip.
All disbursements made on account of said road shall be by warrant of
the superintendent, drawn upon the treasurer, and be first passed by
the auditor.
§1002. (1006.) (926.) Cases where superintendent and auditor differ. The
superintendent may refuse to ratify the approval of the auditor, and
when so refusing the claim shall be presented to the Governor to de-
cide; if he allows the claim, or any part thereof, the superintendent
shall draw his warrant and express therein, "By approval of the
222 PART I.— TITLE X.— CHAPTER III.
The Western and Atlantic Railroad and its government.
Governor." If he concurs with the superintendent, the party may ac-
cept the decision or bring suit.
§1003. (1007.) (927.) Proceeds to be paid monthly into treasury. The pro-
ceeds of said road, after deducting expenses and all debts, which are
liens upon its income, shall be paid into the treasury of the State
monthly, and shall first be applied to the payment of the principal
and interest of the bonds of the State issued on account of said road.
§1004. (1008.) (928.) Useless iron, etc., shall be sold on thirty days' 1 notice.
Acts of 1855 Whenever any iron, or any tackle or apparel may become useless tc
-6, p. 157. sa j(j roac ^ anc [ the superintendent cannot have the same converted
into new iron on reasonable terms, or for any other good reason, he shall
sell the same at public outcry, at whatever point it may be most to the
interest and convenience of the road, to the highest bidder, after giv
ing at least thirty days' notice of the time and place of said sale, with
a description of the property, in a public gazette at Atlanta.
Section cited : 60 G-a., 279.
§1005. (1009.) (929.) Terms of sale. He may sell said property for
cash or credit, as in his discretion it may be best for the State : Pro-
vided, that, if on credit, it shall not be longer than twelve months, with
note or bond and personal security thereto, payable to the Governor
and his successor in office, or bearer, which shall be deposited in the
State treasury, and when collected be as part of the net earnings of the
road.
All this law in regard to sale referred to : 60 Ga., 278-9.
§1006. (1010.) (930.) Officer not to be purchaser. Neither the superin
tendent nor any officer of the State Road shall be a purchaser, directly
or indirectly, at said sales, on pain of forfeiting to the State the prop
erty purchased and price paid, and of being removed by the Governor.
§1007. (1011.) (931.) Record of sales to be kept. The superintendent
shall keep a record of all such property sold, to whom sold, at what
price, and on what terms, and shall embrace the same in his report to
the Governor.
Section cited: 60 Ga., 279.
§1008. (1012.) (932.) Restriction on sale of road property. The Gov
ernor or superintendent shall not sell any part of the right of way, nor
any property or land of the road, that may be necessary for the erection
of depots, wood yards, water stations, or for any other improvement to
the convenience or interest of said road; but they may sell any land of
the road if of no use to it, in the manner iron is sold — advertising it in
a public gazette at Atlanta, and in the county where it lies, and in a
public gazette thereof, if one, and the superintendent shall execute deeds
thereto in his official capacity.
§1009. (1013.) (933.) Who may travel without charge. All lunatics and
Acts of 1853 idiots, and the persons having them in charge, not more than one to
-4, p. 97. each of such, when sent from any county to the Lunatic Asylum, and the
latter returning, and all deaf and dumb and blind pupils partaking of
the State's bounty, with their necessary attendants, when going and
returning from their schools, shall go from and return to their homes,
free of charge on said road.
§1010. (1014.) (934.) Superintendent to enforce the laws. The superin-
tendent of said road is specially charged with the due execution and
faithful fulfillment of all the laws for the government and regulation of
the same.
§1011. (1015.) (935.) Lime, transportation of Said road shall transport
lime for agricultural purposes, by the car load, from any depot thereof
to Atlanta, from the first day of May to the first day of August of each
PART L— TITLE X.— CHAPTER IV.
223
Stocks.
Irear, or at any other time not conflicting with the interest of said road, Actsofisso,
it a rate not exceeding three cents per bushel : Provided, connecting p- 9 '
roads at Atlanta will transport lime for agricultural purposes at cor-
responding low rates, and give the superintendent of the road notice
,hereof, with consent to be bound permanently by such rate. Any
;onnecting road at Atlanta failing to give such notice and consent shall
lot be entitled to the benefits intended to be secured to the agricultural
nterest contiguous to such road. Before any person shall transport
ime on said road, or any road in connection therewith, at said rate, he
shall make oath in writing before receiving said lime and paying said
freight, that it has been or is to be transported for, and will be used in
rood faith in, improvement of the soil in the State ; which affidavit
fhall be filed in the office of the company to whom the freight is paid.
§1012. (1016.) Land owners may build stock gaps. [All persons in this(a)_Acts f
State owning land through which the Western and Atlantic Railroad 26ir262 PP '
jasses shall have permission to build stock gaps on said road when the
ine of their fences may cross the same, and shall have the privilege of
oining their fences to such stock gaps : Provided, said land owners
j^hall not improperly interfere with the bed of said road, or render it less
afe, or interfere with the running of the trains thereon.] (a.)
Genekal Note. — The chief engineer rejecting a claim does not authorize suit against
[the superintendent, under the Act of 1851-2 (C. p. 110) : 19 Ga., 543. Can be sued only by
i special Act of the General Assembly : 23 Ga., 436. Not subject to garnishment; 37
bra., 240. Not liable to pay for cross-ties taken from a citizen and used in the repair
pf the road under an ageijt of General Wilson: 39 Ga., 609. Suit under the third
iection of the Act of 1870 to authorize a lease and before said lease was consummated :
|12 Ga., 462. The same remedy against the superintendent of the Western and Atlantic
ailroad as against tax collectors : 46 Ga., 358.
CHAPTER IV.
STOCKS.
Section.
1015. Stock in Main Trunk Railroad.
The State owns the
dock. The State owns the following
Section.
1013. Bank stock owned by State.
1014. Railroad stock owned by State.
§1013. (1017.) (936.) Bank stock owned by State.
following bank stock :
In the Bank of the State of Georgia . .1833 shares.
In the Bank of Augusta 890
In the Bank of Georgia Railroad and Banking Company 186 "
§1014. (1018.) (937.) Railroad
(railroad stock :
In the Main Trunk Road „ 5000 shares.
§1015.. (1019.) (938.) Extension of stock in Main Trunk Railroad. The
stock in the Main Trunk may be extended to ten thousand shares on
the condition that the State shall own, as she does now, five-elevenths
to be taken when individuals take and pay for the balance according to
the Act of incorporation and Acts amendatory thereof.*
*Large part transferred to A. and G. R. R. Co. See Acts of 1874, p. 96.
224 PART I.— TITLE XL— CHAPTER L
Public printing, how done.
CHAPTER V.
OTHER PUBLIC PROPERTY.
Section 1016. Library, furniture, arms, etc.
§1016. (1020.) (939.) Library, arsenals and other property. The Stat*
owns the library at the Capitol, the furniture and contents of her vari-
ous public buildings, and the public arms, munitions, and accoutre-
ments of war in her arsenals and in the charge of her several volunteei
companies.
[The law relating to the Public Printer, beginning with section 1017, and ending with sectioi
1040 of the Code of 1873, was repealed or superseded by- Aft of 23d August, 1879, (see Acts of 1878-9
pp. 37, 38 and 39,) which is embodied in sections 1040 (a.) to 1040 (f.) inclusive.]
TITLE XL
PUBLIC PRINTING.
CHAPTER L
PUBLIC PRINTING, HOW DONE.
Section.
1040. (a.) Public printing let to lowest
bidder.
1010. (b.) Commissioners of public printing.
1040. (c.) Notice to bidders and awards,'
Section.
1040. (d.) Stipulations and specifications
1040. (e.) Forfeiture of contract, when.
1040. (f.) Bond of contractor and sureties
§1040. (a.) Public printing, hoio let out. The office of Public Printe
Acts of i8?8 shall expire with the term of the present incumbent, and the publi
-9, p. 37. printing shall be let to the lowest responsible bidder or bidders, wh
shall give adequate and satisfactory security in a "sum not less thai
twenty thousand dollars for the faithful performance of the contract
and no member of the General Assembly, or other public officer, shal
be interested, either directly or indirectly, in any such contract.
§1040. (b.) Commissioners of public printing. The Secretary of State
Acts of 1878 the Comptroller-General, and the Treasurer of the State be, and they ar
-8, p. 37. hereby, appointed commissioners of public printing, with full powers t
contract for and superintend the same under this Chapter, as herein
after provided, and any two of them shall be sufficient to act.
§1040. (c.) Notice for bids. Said commissioners, on or by the firs
Acts of 1878 week in June, 1880, and every two years thereafter, shall give notic
-9, p. 37. by advertisement in one of the newspapers published in each of thB
Congressional districts of this State, that sealed proposals to do th
public printing for the State will be received by them at the office c
the Secretary of State, in Atlanta, for thirty days. That on the firs
Tuesday of August folllowing, the public printing will be awarded t<
the lowest bidder whose bid is filed in compliance with law.
§1040. (d. ) Stipulations and specifications. When bids are made to d
Acts of 1878 the public printing, such bids must be based on the following stipulations
-9, p. 37. specifications and requirements, to-wit: That the Laws shall be complete'
and delivered in the office of the Librarian of the State, at the Capito;
within thirty days from the adjournment of each session of the Legi'
lature. The Journals shall be printed and delivered in the office of th
Librarian within thirty days from the adjournment of each session c
the Legislature. The paper on which the Laws and Journals ar
PART I.— TITLE XL— CHAPTER I. 225
Public printing, how done.
printed shall be No. 1 sized, and super-calendered white book. That
:or the Laws size 26 by 40 inches, and weighing fifty pounds to the
ream. The paper for the Journals, size 24 by 38 ; weighing fifty pounds
to the ream. The paper used in printing the messages of the Governor,
the reports of heads of departments of State government, the reports
}f committees of the Legislature, and all other documents of similar
3haracter, must be the same as that used on the Journals.
All blank books made for the use of the State shall be manufactured
}f the best ledger writing paper of Byron Weston's, or other equally
zoocl make, and the binding full, with extra Russia ends and bands.
The tax and wild land digests shall be ruled, printed and bound in the
same style as the digests of 1878. The paper for the tax digests shall
be on thirty-six pound double flat-cap of Whiting's, or other equally
good make. The wild land digests of the same paper, twenty-eight
pound demy. The bills printed for the two houses of the General As-
sembly while in session shall be on Whiting's, or other equally good
make, thirty-six pound double flat-cap, in the same type (small pica)
and the same size sheet as bills of 1878. All blanks for the use of
the State shall be on the same paper as that used for the bills of the Leg-
islature, unless otherwise directed by those competent to do so under the
law. The type used in printing the laws shall be new small pica, and
for the head and side-notes new nonpareil, to be set in the same style,
and measure as the laws of 1877. The type for the Journals shall be
new small pica, set in. the same style and measure as the Journals of the
Legislature of 1877. *
The type used on the reports of heads of departments, reports of com- Acts of 18 7 8
mittees of the Legislature, the messages of the Governor, and other sim- - ,} . p- 37 «
ilar documents, shall be in new small pica type, and table work in new
nonpareil, or other suitable type. The bids for public printing shall
be submitted in writing, under seal, and directed to the commissioners
of public printing with the following specifications, to-wit:
On the Laws. — For composition, cents per 1,000 ems. For paper
of No. 1 white, sized and super-calendered, book size 24x40 inches, and
weighing sixty pounds to the ream, — — cents per pound. For proof-
reading, make-up and putting to press for each form of 16 pages,
cents. For press-work on book press, with No. 1 book ink, costing not
less than 75 cents per pound, cents per token of 250 impressions
for forms of 16 pages.
On the Journals. — For composition, small pica type, per 1,000 ems,
cents. For paper No. 1, sized and super-calendered, book size,
24x36 and weighing fifty pounds to the ream, per pound, cents.
For proof-reading, make-up and putting to press each form of 16 pages,
cents. For press work per token of 250 impressions on book, 75
cents book ink, 16 page forms, cents. For folding 16 page forms,
per thousand sheets, . •
For stitching Pamphlets, .... one section, two holes, per 100,
two " three " " 100,
" u four to six " " " ' " 100,
" " " seven to ten " " •< " 100,
For stitching Journals, From 30 to 60 sections, per 100,
For gathering Pamphlets, For two sections, " 100,
" four " " 100,
" " '* For seven to eight " " 100, -
For gathering Journals and Laws — For 30 to 60 sections, per 100,
For pressing the Laws and Journals — From 30 to 60 sections of 16
pages, per 100, .
For stabbing Journals, Reports and Pamphlets — From 4 to 8 sections,
per 100, ; for stabbing from 20 to 50 sections, 5 holes, per 100, .
15
226
PART I.— TITLE XI.— CHAPTER II.
Distribution of the Laws and Journals and other documents.
For trimming Pamphlets — From 1 to 4 sections, per 100, ; from
7 to 10 sections, per 100,
For trimming Journals — From 30 to 50 sections, per 100 copies, .
For covering Pamphlets — From 1 to 5 sections, per 100, ; from
7 to 9 sections, per 100, .
For sewing Laws — From 20 to 30 sections, per book,
For making cases for Laws — No. 30 Dary's tarboard, sheep back and
corners; sides best tea cover, 35th 20x25 flat paper, per case, .
For rounding and casing the Laws, per copy, .
For ruling Tax Digests, per ream, . For composition, per 1000
ems, . For make-up and putting to press each form, . For
press work, per token of 250 impressions,
ing Digests, per 100 copies,
For ruling Wild Land Digests, per ream,
1,000 ems, . For make-up and putting to press, each form,
For binding and label-
For composition per
For press work, per token of 250 impressions,
labeling Wild Land Digests, per 100 copies,
For binding and
For Blank Books, extra Russia ends and bands, cap books, 20 sheets
to the quire, per quire, .
For Demy Books, 20 sheets to the quire, per quire, .
Medium Books, 20 sheets to the quire, per quire,
For Double Cap Books, 20 sheets to the quire, per quire,
For Imperial Books, 20 sheets to the quire, per quire,
For Super Royal Books, 20 sheets to the quire, per quire, .
For printed headings on all books, from one line to six lines, .
§1040. (e.) Contract forfeited, when. In case the contractors fail to do
Aetg of 1878 the work according to contract, or fail to furnish materials according to
-9, p. 37. contract, then the contractors and their securities shall be liable on
their bond, and the commissioners may, for any such failure, declare
the bond forfeited, and may award the contract to the next lowest bidder,
or re-let the work at once, in the same manner as hereinbefore set
forth, as to them may seem best.
§1040. (f.) Contractor and sureties, hoiv bound. Each of the securities
on the bond of the person, or persons, to whom said contract may be
awarded shall, at the time of signing the same, verify and state dis-
tinctly for what amount he becomes liable by reason of signing said
bond.
[Sections 1041 to 1045 inclusive, repealed. See Acts of 1877, p. 15.]
CHAPTER II.
DISTRIBUTION OF THE LAWS AND JOURNALS AND OTHER DOCUMENTS.
Section.
1046. Laws and Journals to be distributed.
1047. Number of copies for each county.
1048. Five copies Journals for each county.
1049. Clerk to keep two bound Journals.
1050. Reserved copies of Laws.
1051. Acts of Congress lor each county.
1052. Distribution, how let out.
Section.
1053. Distributors must give bond.
1054. Damages for breach of bond.
1055. Bonds, where filed.
1056. When Governor may appoint dis-
tributors.
1057. Residence of distributors.
1058. Distribution in advance.
§1046. (1050.) (969.) Laws and Journals to be distributed. After the
Laws and Journals are compiled, printed, bound, and delivered to the
State Librarian, he shall, under the supervision of the Governor, cause
them to be distributed to the several counties of this State.
§1047. (1051.) (970.) Copies of Laws for each county. Each county is
Actsof 1861, entitled to one copy of the Acts of the General Assembly for each civil
p. 75. ' officer, both judicial and ministerial, to be distributed by the Ordinary.
PART I.— TITLE XI.— CHAPTER II. 22'
Distribution of the Laws and Journals and other documents.
§1048. (1052.) (971.) Copies of Journals 'for each county. Each county (a) Acts of
is entitled to [two] (a) copies of the Journals of each branch of the A<ytsoii86i'
General Assembly, which are to remain on deposit in the office of thep- 75.
Ordinary, and to which the citizens of the county shall have free ac-
cess; also a copy of the Laws and Journals for each member of the
General Assembly.
§1049. (1053.) (972.) Journals to be bound. Two copies of the Journals
of each branch of the General Assembly shall be as well bound as the
"Acts" — one by such Ordinary at the expense of the county, securely
kept, and not permitted to go out of his office.
§1050. (1054.) (973.) Reserved copies. The librarian shall reserve five Acts of ihtn
hundred copies of the Acts for such further distribution as the General ~ 9 > P- 179 -
Assembly may order, of which number four hundred shall be held by
said librarian for sale to the people of this State, any citizen thereof
having the right to buy one copy at the actual cost thereof, and said
librarian, upon being so requested, shall send by mail to any such citi-
zen a copy of said Laws upon prepayment of the postage thereon and
the price. And the librarian, at the end of every six months, shall pay
all moneys received from the sale of said Laws to the State Treasurer,
taking his receipt therefor, and immediately after such payment report
to the Governor in writing the number of copies sold, and when and
to whom, and the sum so paid to the treasurer, with the date of such
payment.
§1051. (1055.) (974.) Acts of Congress. Each county is entitled to two Actsofi874,.
copies of the Acts of Congress, to be kept in the office as the Journals p- 35 -
are. It shall be the duty of the librarian, under the supervision of the
Governor, as soon as the Laws and Journals of each session are published,
to forward by express, prepaid, to the nearest office of each Ordinary in
the State, the number of the Laws and Journals each county may be
entitled to under the law : Provided, when the Ordinary of any county
shall be at any actual and necessary expense in getting the books from
the express office, he shall give an order on the County Treasurer for
said sum, and it shall be the duty of the County Treasurer to pay the
same. And the librarian, as soon as he shall have expressed said Laws
ard Journals, shall notify each Ordinary thereof by mail, and, also,
to notify him of the office to which said Laws and Journals have been
spn t
[Sections 1052, 1053, 1054, 1055, 1056, 1057 and 1058 of the Code of
1873 superseded by Act of 1874, which imposed the duty of distribu-
tion on the librarian.]
228
PART I.— TITLE XII— CHAPTER I.
Persons subject to military duty, exemptions, etc.
TITLE XII.
PUBLIC DEFENSE .*
CHAPTER I.
PERSONS SUBJECT TO MILITARY DUTY, EXEMPTIONS, ETC.
.Section.
1059. Persons subject to military duty.
1060. Persons exempt.
1061. Officers of militia, when exempt.
1062. Non-commissioned officers, etc.
:1063. Persons employed on vessels, etc.
"1064. Persons subject must be registered.
1065. Oath of persons, etc.
Section.
1066. May perform service or pay tax.
1067. Commutation tax, how avoided.
1068. Company drills, four in each year.
1069. Volunteers exempt from road duty
1070. Amount of commutation tax.
1071. Receipt therefor.
1072. Transient persons, when subject.
§1059. (1063.) (981.) Who are subject to military duty. All able-bodied
ifree whitef male citizens between the ages of twenty one and forty-
.five years, residents in this State, and not exempted by this Code, are
subject to military duty.
§1060. (1064.) (982.) Who are exempt. The following exemptions shall
Joe recognized, viz. :
1. The chief officers of the several Executive departments of State.
2. Judges of the Supreme, Superior, and City Courts, Justices of the
.Peace, Sheriffs and deputies, Clerks of the Courts, and Ordinaries.
3. Members of the Legislature during the term for which they shall
be elected, officers of the Legislature during its session and for seven
days before and after the same.
4. Persons employed on railroad trains, and repairers of railroads,
operators and messengers of telegraph companies, postmasters and per-
,sons employed in post offices and the transportation of the mails.
5. Ferrymen, bridge and toll-gate keepers, and public millers.
6. Ministers and preachers of the gospel, professors and students, and
tutors in all colleges.
7. Aliens and persons not qualified to vote for members of the Legis-
lature.
8. All persons exempted by the Acts of Congress.
9. All persons on the payment of the commutation tax prescribed by
this Code.
10. All officers and non-commissioned officers of the militia who may
entitle themselves to the privileges as hereinafter prescribed.
11. Active members of volunteer corps after a prescribed term of ser-
vice.
12. Regular members of any fire department or organization con-
nected therewith.
§1061. (1065.) (983.) Militia officers, when exempt. Company officers
iof militia who shall uniform and equip themselves according to the
regulations prescribed for the dress and uniform of the army of the
United States, and shall serve in their respective stations continuously
for the term of eight years, shall not be liable to be called on for mili-
tary duty thereafter, except in case of war, insurrection, rebellion or
invasion.
§1062. (1066.) (984.) Non-commissioned officers, musicians and pri-
vates. Every non-commissioned officer, musician or private, of every
-See Cobb's Digest, pp. 736, 771; Acts of 1851-2, p. 255; Acts of 1853-4, p. 575; Acts of 1855-6, p.
261 ; Acts of 1857, p. 125 ; Acts of 1859, p 49; Acts of 1861, p. 64.
tHow is this affected by the 14th amendment to Constitution of United States ?
PART L— TITLE XII.— CHAPTER I. 229
Persons subject to military duty, exemptions, etc.
uniformed volunteer corps, who shall uniform and equip himself, and
whose term of service shall amount to seven years, shall also be ex-
empt from military duty, except in case of war, rebellion, insurrection
or invasion.
§1063. (1067.) (985.) Employees on vessels, pilots, stevedores, factory la-
borers, exempt. Every person employed by the year or season on board
any vessel, or in the merchant service, or coasting trade, all pilots and
stevedores, persons employed in any blooming furnace, or glass or por-
celain factory, cotton or wool mill, shall be exempt from militia duty,
except in cases above enumerated.
§1064. (1068.) (986.) Particulars to be inserted in receiver's digest. Re-
ceivers of tax returns shall, at the time of receiving returns of tax-
able property from the citizens of this State, insert in appropriate col-
umns in their digest the following particulars, viz :
1. Whether the tax payer is himself subject to militia duty.
2. How many in his employ, or members of his family, are subject.
3. The cause of exemption, if any exists.
4. The company, district or beat to which the tax payer belongs.
5. The amount of commutation tax chargeable to him instead of
personal service ; and the- amount so charged shall be collected by the
tax collector and paid over to the Treasurer of the State with the gen-
eral tax, and shall constitute the military fund of the State.
§1065. (1069.) (987.) Cause of exemption must be verified. No receiver
of tax returns shall enter an exemption from military duty against the
name of any person without due proof of the existence of the cause on
which the exemption is claimed, and to that end the following clause
shall be added to the oath administered by the receiver of tax returns :
"And that I believe myself exempted from militia duty in this State
for and on account of the cause set forth in this return."
§1066. (1070.) (988.) Personal service in lieu of tax. Every citizen sub-
ject to military duty may perform the same in lieu of paying the taxes
herein prescribed, but the certificate of the captain or commanding
officer of the company to which he belongs, and in which he is actually
enrolled shall be the only evidence which the tax collector is authorized
to receive in place of the amount charged on the receiver's digest, and
the production of which shall be noted by the tax collector on his re-
turn, and he shall be allowed the same in settlement.
§1067. (1071.) (989.) Officers shall enroll all subject. The captain or
commanding officer in each company district shall enroll, from time to
time, all persons in the limits of the district subject to military duty,
and shall, without dehiy, notify such persons of their enrollment, and
shall give a certificate to each person performing military duty that he
has faithfully performed the same, according to the requirements of the
Code, for twelve months preceding the 31st day of December in each
and every year, and such certificate shall be produced at the time of re-
turning his taxable property, and on failure so to do, the commutation
tax for militia duty shall be charged against him on the book of the
receiver of tax returns.
§1068. (1072.) (990.) Captain's duty. Captains of companies shall cause
to be mustered for parade and drill all persons within their company dis-
tricts who do not pay the commutation tax, the only proof of which
payment shall be the receipt of the office authorized to collect the same,
and who are not otherwise exempt, at least four times in each year, at
such times as they may direct ; but there shall be. an interval of at
least one month between each muster, and they shall file a copy of their
company roll with the Ordinary immediately after the muster which
succeeds the closing of the books of the receiver of tax returns, for
which service they shall respectively receive the sum of one dollar.
230 PART I.— TITLE XII.— CHAPTER II.
Article 1. — Military force, how composed.
§1069. (1073.) (991.) Those who are exempt from road and patrol duty.
Members of volunteer corps actually in uniform and doing duty, and
the field and staff officers of volunteer regiments and battalions, so long
as they remain such, shall be exempted from road and patrol duty, and
taxation upon property by any municipal corporation, except such as
shall be liable to taxation by law to raise a revenue for the State.
§1070. (1074.) (992.) Commutation tax ten per cent, on State tax. The
commutation tax for non-performance of militia duty shall be ten per
cent, upon the State tax provided it shall always amount to twenty-
five cents, and shall be collected and paid as other taxes are collected
and paid into* the treasury ; the amount thus raised shall be set apart
as a separate fund chargeable with the entire military expenses of the
State.
§1071. (1075.) (993.) Payment to be specified in collector's receipt. The
tax collector's receipt to the tax payer shall distinctly specify the pay-
ment of the commutation tax for militia duty, whenever paid, in order
that the same be made available in case of enrollment by the captains
of militia or beat companies.
§1072. (1076.) (994.) Non-residents, when liable to duty. Transient
persons having a place of business, and doing business in the State, but
having no residence or home therein, are liable to militia duty, and on
failure to pay the commutation tax, or perform military service, shall
be liable to an additional penalty not exceeding twenty dollars, to be
adjudged by any court-martial within whose jurisdiction they may hap-
pen to be for a period of ten days.
[Sec. 1077. Superseded by 14th amendment to Constitution of United
States.]
CHAPTER II.
MILITARY ORGANIZATION.
Article 1. — Military Force, how composed.
Article 2. — The Volunteers.
Article 3. — State Flag.
Article 4. — The Militia.
Article 5. — Elections.
ARTICLE I.
• MILITARY FORCE, HOW COMPOSED.
Section. Section.
1073. The military force of the State. i 1074. The engineer corps of the State.
§1073. (1078.) (996.) Military force. The military force of the State
embraces the volunteers and the militia, to which may be added such
military schools, when the institution is of a military character, as may
avail themselves of the provisions herein embraced.
§1074. (1079.) (997.) The engineer corps. The Georgia Military Insti-
tute constitutes the engineer corps of the State, and the officers in the
Institution having military rank in the academic staff, (cadet officers
PART I.— TITLE XII.— CHAPTER II.
231
Article 2.— The volunteers.
excepted, ) shall be commissioned as such according to their respective
grades. (See Military Institute.)*
'CU^a/^fi/f^T^
ARTICLE II.
THE VOLUNTEERS.
Section.
1103. (a.) Volunteers, how organized.
1103. (b.) Who may enroll.
1103. (c.) Number of a company.
1103. (d.) Companies to join battalions.
1103. (e.) Organization of battalions.
1103. (f.) First volunteer regiment.
1103. ig.) Battalions, how officered.
1103. (h.) Name, etc., of companies.
1103. (i.) Nothing larger than battalion.
1103. (j.) Commander-in-chief, etc.
1103. (k.) Appointment of officers.
1103. (1.) Staff officers.
1103. (m ) Election of company officers.
1103. (n.) Election of field officers.
1103. (O.) Returns of elections.
1103. (p.) Election by majority.
1103. (q.) Duration of commissions.
1103. (r.) Qualifications of officers.
1103. (s.) Uniforms.
1103. (t.) Arms, etc.
1103. (u.) Ammunition.
1103. (v.) Bond for arms.
1103. iw.) Surrender of arms.
Section.
1103. (x.)
1103. (y.)
1103. (z.)
1103. (aa.)
1103. (bb.)
1103. (cc.)
1103. (dd.)
U03. (ee.)
1103. iff.)
1103. (gg.)
1103. (hh.)
1103. (ii.)
1103. (jj.)
1103. (kk.)
1103. (11.)
Parades
Disorder at parades
Governor may call out
Pay and rations.
Reports of officers.
Rules.
Soldiers, how governed
Officers, how governed.
Courts martial.
Officers, how tried. ^^
Where tried. (^f£*--^J;
Punishment. //
Pay of members of court martia
Power over contempts.
Uniform, etc., exempt .from levy.
1103. (mm.) Volunteers exempt from militia
duty.
Instructions and drills.
Battalion colors.
Regulations, how prescribed.
Fines, how disposed of.
Privileges of present volunteers
,-^^6^
z-n
1103. (nn.)
1103. (oo.)
1103. (pp.)
1103. (qq.)
1103. (rr.)
Iff? 9 ?*.
§1103. (a.). Volunteer force, how organized. The volunteer force of Acts of msr
this State shall consist of such bodies of infantry, cavalry and artillery ~ 9, p -
as now exist, or may hereafter be organized, in accordance with the
provisions hereinafter set forth. Their organization and service being
voluntary, they are to be distinguished from the militia, and no laws
relating to the militia shall be held to apply to the volunteers, unless
so expressly provided. But they shall be subject to the legislation and
'c^
/
person capable Acts of is-s
-9, v^ps.
control of the State, and must obey all orders from, the proper author- fc*^y« &r && i * 4 M
ity, as hereinafter provided. /ff./<?^
§1103. (b.) Who may be enrolled as a volunteer. Any
of doing military duty (not under 16 years of age) may be enrolled as ~ 9 ' p
a volunteer; but every company and battalion must be composed of men
of the same race and color. / /?' '/"
§1103. (c. ) Number of a company. Every company, whether of infantry, Acts of ists
cavalry or artillery, shall consist of not less than twenty-eight nor more Acts'ofSso
than eighty privates, five sergeants and four corporals ; and the officers -i, p. 104.
of every company shall be one captain, one first lieutenant, and not /ff. /£•%
more than two second lieutenants. No company shall be received or '
commissioned as part of the volunteer force of the State with less than
the minimum strength above specified, and any company permanently
reduced below that minimum shall be disbanded by the Governor. But
nothing herein contained shall be construed to affect companies, or
battalions, heretofore incorporated by any law of this State, or to pre-
vent any company or battalion from bearing on its rolls honorary or
exempt members.
§1103. (d.) Companies must join battalions. Every company of infantry Acts of ists
or cavalry must be attached to a battalion of the same arm, unless, by ~ 9 ' p ' 38-
reason of the remoteness of its location, or other special circumstances,
the Governor shall permit it to remain separate and unattached. But
each battalion shall be composed, at the time of its organization, of not
*The Georgia Military Institute was destroved during the late war, and the site of the same has
been disposed of. Sections 1075 to 1103, both included, of the Code of 187?, repealed, and the sec-
sions of this Code, beginning with 1103 (a.) and ending with 1103 (rr.) substituted therefor. See Acts
of 1878-it, p. 103.
232 PART I.— TITLE XII.— CHAPTER II.
Article 2.— The volunteers.
less than three, nor more than six companies, of the same race and color,
subject to the foregoing provisions. Whenever there are several com-
panies in the same city, town, or county, not less than three in number,
not already organized in, or attached to, any battalion or battalions, the
Governor shall require them to organize in one or more battalions, ac-
cording to their number, and shall order the necessary elections for that
purpose; but when there are a sufficient number of such companies to
form two or more battalions, the Governor may permit them to choose
the battalion to which the}^ will be attached. Any company, or com-
panies, in any town, city or county where there are not companies
enough to form a battalion, or where a full battalion, or battalions, has
already been formed, may unite with other companies in. adjoining or
neighboring counties, for that purpose, and if any company shall, for
any reason, fail to do so within twelve months after October 16th, 1879,
or after commissions are issued to officers, the Governor may, in his dis-
cretion, designate the battalion to which it shall be attached.
§1103. (e.) Organization and privileges of battalions. Every battalion
Acts-of 1878 now organized and commissioned may retain its organization and
-9, p. 104. privileges without regard to the number of companies of which it is
composed : Provided, there be at least two, with the privilege of receiv-
ing other companies into its organization. But no such battalion shall
be increased to more than six companies, and no battalion hereafter
organized shall consist of less than three or more than six companies.
• §1103. (f.) First volunteer regiment of Georgia. The regiment of volun-
Acts of 1878 teers now organized under the name of "The First Volunteer Regiment
-9, p. 104. £ G eor gi a) " m ay retain its organization and chartered privileges, sub-
ject to all rules herein prescribed for battalions, with the privilege of
receiving other companies of infantry formed in Chatham county until
it consists of ten companies.
§1103. (g.) Battalions, how officered. Every battalion shall be corn-
Acts of 1878 manded by a lieutenant-colonel, without regard to the number of com-
-9, p. 104. p an j es f w hich it is composed; and and to every major now command-
ing a battalion a lieutenant-colonel's commission shall be immediately
issued, such officers taking rank among themselves according to the
date of their present commissions. Every battalion of six companies
may have a major as well as a lieutenant-colonel. The commissioned
and non-commissioned staff of every battalion shall consist of at least
an adjutant and a quartermaster, each with the rank of first lieuten-
ant, a sergeant-major and a quartermaster sergeant. To these may be
added, in the discretion of the battalion commander, a paymaster, a
commissary and a surgeon, each with the rank of first lieutenant, an
ordnance sergeant and a hospital steward. Any other staff officers
than the foregoing already appointed in any battalion, under laws
heretofore existing, may retain their appointments; but when such
appointments become vacant, they shall not be refilled.
§1103. (h.) Names and designation of companies. Companies already
Acts of i?78 organized will retain any special name or designation they may have
-9, p. 105. adopted or may have by charter, if incorporated, and any company
hereafter organized may adopt any special name or designation it may
select, and under that name will be received and commissioned, but
every company attached to a battalion must be designated in the bat-
talion by a letter of the alphabet, in the manner now in use in the
army of the United States. Battalions already organized under special
names, whether under charter, special Act or otherwise, may retain
these designations, but they mUst also be numbered in their respective
arms, according to the date of their organization. And every battalion
hereinafter organized, whether it adopt any special designation or not
must also be numbered in regular order as organized.
PART I.— TITLE XII.— CHAPTER II. 233
Article 2.— The volunteers.
Pattalions of colored troops, or persons of African descent, must be Actsofi878
numbered in a separate series, describing them as such. And all vol- ~ 9 > p- 105 -
unteer troops of this State, of all arms and colors, shall be styled and
known as Georgia Volunteers.
§1103. (i.) No organization larger than battalion. Until otherwise pro-
vided by law, there shall be no regimental , brigade, division, or other/^* "^ '' <
lafgeroj^anization of the volunteers of this State ; and commanders of
"^5a^t*ations and unattached companies shall receive orders only from ^ ^^^^L>
'the Governor, except when otherwise specially provided. &£*-+^+** ^4*^-*^
§1103. (j.) Commander-in-chief and adjutant-general. The Governor Acts of i87S
is commander-in-chief of the volunteers as of all other military forces of ^ c ts onsso
this State. He shall designate some officer of the Executive department -1, p. 104.
or some other person to perform the duties of adjutant-general includ- g U2 i,
ing those specified in section 1121 of this Code, so far as the same is
applicable to the volunteers, and shall have that title, and the rank of
colonel, but shall receive no additional compensation whatever there-^^ y^_ <aj^w
for; and who, with such aides-de-camp , with the rank of lieutenant- t^Jsr?-'*-*-^' ^j+
colonel, as the Governor may find it necessary to appoint, shall con>^« V. '- <***• '
stitute his military staff.
§1103. (k.) Appointment and removal of non-commissioned officers. Non- Acts of ists
commissioned officers of companies shall be appointed and subject to ~ 9, p - 10d -
removal according to such rules adopted by their companies as are not
contrary to law. Non-commissioned staff officers of battalions shall be
appointed and subject to removal by the battalion commander, or ac-
cording to the rules of the battalion, not contrary to law. But when in
the active service of the State all such rules may be suspended at the
discretion of the Governor, who may then prescribe different regulations
on this subject. t xp , * ^
§1103. (1.) Appointment of commissioned staff officers. Commissioned 6^Ca^^^-^^-^-
staff officers of battalions shall be appointed and commissioned by the /& £._ v^
Governor, upon recommendation of the battalion commander. * '
§1103. (m.) Election of company officers. Company officers shall beActsofi878
elected by the members of the company. In the case of a company at- ~ 9, p - 106 -
tached to a battalion the election shall be ordered by the battalion
commander. In an unattached company, an election for a subaltern
officer shall be ordered by the captain ; an election for captain
shall be ordered by the Governor. In any case, if an officer al-
ready in commission be promoted, the vacancy then created may be
filled at the same election without further orders. Such elections may
be superintended by any two or more officers of volunteers not con-
nected with the company in which the election is to take place, or by
any two or more Justices of the Peace or freeholders, or one Justice and
one freeholder of the county where the election is to take place. The
polls shall be kept open not less than two hours nor more than one day.
The order for the election shall be promulgated to the members of the
company at least five days before the election, in the manner as other
orders to the company are promulgated, and shall specify the time and
place of the election, and between what hours the polls are to be open.
§1103. (n.) Field officers, how elected. Field officers of a battalion shall Acts of 1878
be elected by the members of the companies of which it is composed. ~ 9, p * 106 '
If the election be for a battalion commander, it shall be ordered by
the Governor; if for a junior officer, it shall be ordered by the battalion
commander. In either case, if a field orffcer already in commission in
the same battalion be promoted, the vacancy thus created may be filled
at the same election without further order. Such elections may be
superintended by any two or more officers of volunteers of the same or
any other battalion, not themselves candidates, or any two or more
Justices of the Peace or freeholders of the county in which the election ■
234 PART I.— TITLE XIL— CHAPTER II.
Article 2.— The volunteers.
is to take place, or by one or more Justices of the Peace with one or
more freeholders. The polls shall be kept open not less than two
hours, nor more than one day. The order for the election shall be pro-
mulgated, in the same manner as other orders, at least ten days before
the election is held, and shall specify the time and place of the elec-
tion, and between what hours the polls are to be open. In the case of
a battalion composed of companies in different counties, there shall be
a poll in each county where there may be one company or more; and
the election shall be conducted at each on the same day and in manner
above prescribed.
§1103. (o.) Election returns, to whom made. Returns of elections for
Acts of 1878 officers of companies attached to battalions, and for junior field officers of
-9, p. 107. battalions, shall be transmitted to the Governor through the battalion
commander ; and those of elections for officers of unattached companies
through the captain of the company. Returns of elections for captain
of unattached companies, and for battalion commanders, shall be sent
directly to the Governor by the superintendent.
§1103. (p.) Elections, how decided. In every election for an officer of
Acts of 1878 volunteers, the majority of the votes cast shall decide. In the event
' p * of a mere plurality or a tie/a new election shall be ordered. When the
returns show a majority of votes cast for one person, the Governor shall
forthwith issue to the officer elect the proper commission, bearing date
the day the election was held. If an election be contested, notice there-
of shall be given to the Governor within five days after the election,
and the commission shall be withheld until the contest shall be deci-.
ded. In such a case either party contestant may, upon five days' notice
to the other, take testimony, upon oath, before any Justice of the Peace
of the county in which the election was held, within thirty days' after
such election, which testimony shall be forwarded, by such Justice, to
the Governor for his decision thereon. The Governor's decision shall
be final, and thereupon the commission shall be issued accordingly.
§1103. (q.) Duration of commission. Every commission issued to an
Acts of 1878 officer of volunteers shall continue until death, resignation, promotion
o ~ 9 ' P 10 & or dismissal °f the officer. And all companies and battalions are hereby
A**8***^. r-0-o-^*v -forbidden to adopt or retain rules providing for the periodical election
/fX- * ft* of any commissioned officer. And commissions issued to staff officers
of battalions shall in like manner continue, notwithstanding the death,
resignation, or dismissal of the battalion commander, upon whose rec-
ommendation they were appointed. Nevertheless, upon the disbanding
of any company, or dissolution of any battalion, the commissions of all
officers of such company or battalion shall thereupon cease.
§1103. (r.) Qualifications of officers. No commission shall be issued to
Acts of 1880 any person elected to be commander or other field officer of any bat-
Acts' of°i878 talion, and no such officer elect shall enter upon his duties, until he
-9, p. 107. shall have satisfactorily passed an examination touching his compe-
tency and fitness for the office by such persons and in such manner as
the Governor shall prescribe in the general regulations hereinafter pro-
vided for.
/fi \J2~&'. §1103. (s.) Uniforms. The uniform already adopted by any company
Y / ' /Acts of 1878 or battalion already uniformed at the time of the passage of this Article,
-9, p. 107. j s hereby authorized, and may be retained by such company or battal-
ion as long as it pleases, but it cannot be changed, except for the uni-
form hereinafter provided for, afnd no company or battalion shall here-
after be received or recognized, or supplied with arms or accoutre-
ments, or its officers commissioned, unless it be uniformed in the
manner hereinafter provided for. But every battalion or unattached
company shall be at liberty to adopt such distinctive marks, orna-
ments, or insignia, in addition to the uniform hereinafter provided for,
PART I.— TITLE XIL— CHAPTER II. 235
Article 2.— The volunteers. •
as it may prefer, subject to the approval of the Governor, provided it
makes no substantial change in the uniform.
Subject to the foregoing provisions, the uniform and dress of the vol-
unteers of this State shall be as prescribed by the Governor in the
general regulations hereinafter provided; but the volunteers must uni-
form and equip themselves at their own expense.
§1103. (t.) Arms and accoutrements. The arms and accoutrements of Acts of 1878
the volunteer troops of this State shall be such, in each arm, as are" 9, p- 108 -
furnished by the Governor out of those supplied to him by the govern-
ment of the United States ; and it shall be the duty of the Governor
hereafter to distribute the arms obtained from the government of' the
United States to companies not yet armed by the State, in such manner
as in his judgment shall most conduce to the public interest, and all
the companies of each battalion must be armed and accoutred alike ;
but any company, of either arm, to which the Governor may be unable
to furnish arms and accoutrements, may find its own, subject to the
rules that all the companies of the same battalion shall be armed and
accoutred alike, and that all such arms be such as are used in the army
of the United States ; and no company shall be received, recognized or
commissioned, unless the Governor be prepared to furnish it with arms
and accoutrements, or it be already furnished at its own expense,
subject to the foregoing rules. All arms and accoutrements furnished
by the Governor shall be accounted for in the returns hereinafter pro-
vided for. But nothing herein contained shall be construed to prevent
any company or battalion from having and using accoutrements, in
time of peace, different from those supplied by the Governor, at its own
expense : Provided, that all companies in the same battalion be accou-
tred alike.
§1103. (u.) Governor shall supply ammunition. The Governor shall Acts of 1 878
furnish annually the commander of each battalion and unattached ~ 9, p# 108,
company the following supplies of fixed ammunition to the volunteers
armed according to the provisions of the foregoing section, out of the
supplies of ammunition received from, the government of the United
States, viz : To each company of infantry not more than ten round of
ball and six round of blank cartridge, of which not less than five round
of ball cartridge shall be always on hand for the service of the State ;
to each company of cavalry armed with pistols or carbines, not more
than twenty round of ball cartridge, of which not less than ten round
of ball cartridge shall be always on hand for the service of the State ;
to each battery of artillery not more than ten round of shot or shell per
gun, and six round of blank cartridge, of which not less than five round
of shot or shell per gun shall be always on hand for the service of the
State ; and to these shall be added, for the artillery, the proper propor-
tion of friction primers. All ammunition issued shall be accounted for
in the returns hereinafter required.
§1103. (v.) Bond to be given for arms and accoutrements. All arms and Acts of 1878
accoutrements shall be issued by the Governor to the commander Qf^^jfjggp
the company, and shall be receipted for by him; but no such issue -1 p. 104,
shall be made until after there shall have been executed and delivered
to the Governor a bond of the officer, with at least two sureties, who
shall be jointly and severally bound, and each of whom shall be sworn
that he is worth the amount of the bond over and above his indebted-
ness, and the amount of the homestead 'exemption allowed by law, in
double the value of such arms and accoutrements, payable to the Gov-
ernor and his successors in office, for the safe keeping, proper use and
surrender, when required, of the same. In the event of the death,
resignation or dismissal of such officer, his successor shall not be com-
missioned or entitled to enter upon his command until he shall have
236 PART L— TITLE XII.— CHAPTER II.-
'Article 2. — The volunteers.
reported to the Governor the arms and accoutrements remaining of
those originally issued to the command, and have delivered to the
Governor - his own bond for the same, with sureties as above prescribed.
The person giving bond for arms and accoutrements, his executors,
administrators and sureties, shall be liable to suit in the proper Court
for damages resulting from a breach thereof. And any non-commis-
sioned officer or soldier, to whom his commanding officer may find it
necessary or convenient to entrust arms or accoutrements issued by the
State shall be liable to su^h officer for any loss of, or injury to, the
same in any Court having jurisdiction of the person of the defendant
and the amount of the demand. And if any officer or soldier shall sell
or otherwise dispose of any arms or accoutrements belonging to the
State in his possession, custody or control, the purchaser shall acquire
no title, and such officer or soldier shall, upon conviction thereof by a
court-martial, be dismissed from the volunteer force, and upon convic-
tion thereof in the Superior Court of the county where the offense was
committed, shall be fined in a sum not exceeding fifty dollars, or im-
prisoned in the common jail of the county not more than twenty days,
or both, in the discretion of the Court. And it shall be the duty of
the Governor to require the adjutant-general to inspect, at least once in
every year, the arms and accoutrements issued to each company and
each military school or college in the State, and to make a written re-
port of such inspection, showing the condition of such arms and accou-
trements, and the nature and extent of the repairs needed, if any ; and
such repairs may be ordered by the Governor by the supply of missing
. parts from the quota received from the United States, or by the em-
ployment of skilled artisans under the direction of the company com-
mander or president, who shall be paid by the Governor out of the
contingent fund upon itemized accounts certified by the company com-
mander or president. The adjutant-general shall receive no compen-
sation for these inspections, but the necessary expenses of them, not
exceeding the amount of $250.00 in any one year, shall be paid out of
the contingent fund upon itemized accounts.
§1103. (w.) Arms, etc., surrendered, when. Whenever any company
Acts of 1878 shall be disbanded, or shall refuse to obey the lawful order of its com-
-9, p. 109. p an y or battalion commander, or of the Governor, the Governor may
require the immediate surrender of all arms, accoutrements and ammu-
nition issued for its use ; and upon neglect or refusal to surrender the
same within thirty days after such demand, the captain and his sureties
shall become liable to suit on his bond, and the arms, accoutrements
and ammunition maj^ be taken possession of wherever found by any
officer of the State, civil or military, by such summary process as the
law provides, and immediately deliver to the Governor, or his order.
§1103. (x.) Parades. Every company of volunteers shall parade at
Acts of 1878 least four times in every year, and every battalion at least once in every
-9, p. no. vear? the times to be appointed by the rules adopted by such company
or battalion, or in the absence of such rules, by its commanding officer.
The Governor may order such other parades, not exceeding one in any
year, of any company or battalion, as he may think proper, for inspection
or review, by the adjutant-general or such officer of volunteers as he
may designate for that duty.
§1103. (y.) Disturbers of parades subject to arrest. The officer command-
Acts of 1878 ing any detachment, company or battalion at any parade, or during the
-9, p. no. p er f ormance f an y other duty ordered by proper authority, shall have
authority to arrest and place under confinement during the continuance
of such duty, any person who shall in any way willfully disturb or in-
terrupt the peaceable and orderly proceedings of such detachment, com-
pany or battalion, and such person shall, moreover, be liable to prose-
PART L— TITLE XII.— CHAPTER II. 237
Article 2.— The volunteers.
cution in the Superior Court of the county where the offense is com-
mitted, and on conviction, shall be fined in a sum not exceeding fifty
dollars or be imprisoned not more than twenty days, or both, at the
discretion of the Court.
§1103. (z.) Volunteers subject to Governor's call, when. In case of any Acts of 1878
invasion, rebellion, insurrection, or probable prospect thereof, the Gov- -9, p ' m
ernor shall have authority to order into Ihe service of the State such
portion of the volunteers as, in his judgment, the occasion shall require,
and to detail or appoint to command them the ranking officer so ordered 1
or any other officer of superior rank, and such other officers for their
payment and supply as he may find necessary.
§1103. (aa.) Pay and rations while in service. Whenever any part ofActsofi878
the volunteer force of the State is called into the service of the State, ~ 9 ' p " 110,
under the preceding section, all officers and soldiers responding to such
call shall be entitled to such pay, rations, and other allowances or to
commutation therefor, as are prescribed for officers and soldiers of the
army of the United States — every fraction of a day of such service to
be counted as an entire day.
§1103. (bb.) Reports of officers, etc. The commanding officer of every Acts of 1878
battalion or unattached company, shall annually make a report to the Actaofissq
Governor, in such form as the Governor shall prescribe, of the strength -1, 105.
of his command, and of all arms, accoutrements and ammunition sup-
plied to it. And the commander of every company attached to a bat-
tallion shall make a similar report to his battalion commander. These
reports shall show the state of the command on the first day of May in
each year, and shall be made within thirty days thereafter. And any
officer who shall knowingly make a false report shall, upon conviction
thereof by a court-martial, be cashiered, or fined not more than $100, or
both, in the discretion of the court. And if any officer shall neglect
to make any report required of him by this section, it shall be the duty
of the Governor to require him to show cause why his command should
not be disbanded.
§1103. (cc.) Rules, how prescribed. Every company and battalion ofActsofi878
volunteers may adopt such rules for the government of its members as ~ 9 ' p< 11L
it may think best: Provided, such rules contain nothing contrary to the
law of this State, or of the United States, and provided also, that the
rules of any company be not inconsistent with those of the battalion
to which it belongs.
§1103. (dd. ) Non-commissioned officers and men, how governed. When Acts of 1878
not in the actual service of the State for a time of seven days or more, " 9 > p - nl -
delinquencies of non-commissioned officers and soldiers shall be pun-
ished in such manner as shall be prescribed by the rules of the company
or battalion to which they belong : Provided, that such rules shall impose
no other penalties than fines, expulsion, or the reduction of non-com-
missioned officers to the ranks, and shall not, in other respects, be con-
trary to the laws of this State, or the United States. But every offi-
cer, or non-commissioned officer, commanding a detachment, company
or battalion, on parade or other duty, shall have authority to arrest,
and keep under arrest during such parade or other duty, any officer or
soldier under his command, for such disobedience of orders, or disorder-
ly or insubordinate conduct, as shall obstruct or interrupt the parade
or other duty. All fines imposed in pursuance of the rules of any com-
pany or battalion shall be the property of the organization, and shall
rank, in the distribution of the estates of deceased and insolvent per-
sons, next after debts due to the public. When in the actual service
of the State for a time of seven days or more, the rules of the company
or battalion maybe suspended, in the discretion of the Governor, and
in such case, all officers, non-commissioned officers and soldiers shall
238 PART I.— TITLE XII.— CHAPTER II.
Article 2. — The volunteers.
be governed by the military law of the State, or by such regulations
as shall be promulgated by the Governor in accordance with law.
§1103. (ee.) Commissioned officers, how governed. Officers shall, in like
Acts of 1878 manner, be governed by the rules of the company or battalion to which
-9, p. in. tney belong, subject to the provisions hereinbefore set forth ; but no
vote, sentence, or other decision under such rules, shall have effect to
deprive an officer of his commission unless approved by the Governor,
upon a full report of all the proceedings in the case.
§1103. (ff.) Courts martial. The rules of any company or battalion
Acts of 1878 may provide for the organization of courts martial within such company
-9, p. in. or Da ttalion, for the trial and punishment of its own members for
offenses against its own rules, subject to the restrictions hereinbefore
set forth; and the sentence of such courts within the scope of their
powers shall be respected.
§1103. (gg.) Officers, how tried. For the trial of any officer of a corn-
Acts of 1878 pany attached to a battalion, for a military offense, not provided for by
-9, p. in. the rules of the company or battalion to which he belongs, the battalion
commander shall have authority to order a court martial, composed of
officers of the same battalion, not less than five nor more than seven in
number, and not including any officer of the same company junior in
rank to the accused. If the accused officer belong to an unattached
company, the court shall be ordered by the Governor, subject to the
foregoing regulations as to the number and qualifications of the officers
composing it. If the accused be a field officer of a battalion, the court
shall, in like manner, be ordered by the Governor, and shall consist of
not less than five nor more than seven officers, none of whom shall be
of the same battalion and junior in rank to the accused. It shall not
be necessary, in any case, that the members of the court shall be of
equal or superior rank to the accused.
§1103. (hh.) Officers, where tried. Except when the accused officer is
Acts of 1878 in the actual service of the State, every such court martial shall be held
-9, p. ii2. j n th e county where the offense was committed ; and the accused officer
shall have at least thirty days' notice of the time the court is to convene,
(with a copy of the charges against him, and of the order under which
the court is to convene). If the accused officer refuse or fail to attend
without sufficient excuse, to be judged of by the court, the court may,
upon proof of service of notice upon him, as above provided, proceed to
hear and decide in his absence. In all particulars not herein provided
for, the organization and proceedings of the court shall be according to
the law and practice of courts martial in the army of the United States.
§1103. (ii.) Punishment of officers. No heavier punishment shall be
Acts of 1878 imposed by any such court than cashiering, or a fine of one hundred
-9, p. ii2. dollars ; and no sentence shall be enforced unless approved by the Gov-
ernor, upon a full report of all the proceedings in the case. If the Gov-
ernor approve a sentence to be cashiered, he shall announce the same
in orders, and thereupon the commission of the delinquent shall cease,
and an election to fill the vacancy shall be ordered. If the Governor
approve a sentence to pay a fine, he shall announce the same in
orders, and the president of the court shall thereupon issue an execution
therefor, signed by himself and countersigned by the judge-advocate,
which shall have a lien upon all the property of the delinquent in this
State, taking rank as a debt due to the public, and next after taxes, and
may be levied by any Sheriff or deputy Sheriff of this State. And all
moneys collected under such executions shall be first applied to the
payment of expenses of the court ; and the residue, if any, shall be paid
into the treasury of the State, to become a part of the military fund.
§1103. (jj.) Pay of court martial, etc. Every member or a court martial
ordered by the Governor, and the judge-advocate thereof, shall be enti-
i
PART I.— TITLE XIL— CHAPTER II. 239
Article 2.— The "volunteers.
tied to receive the sum of five dollars for each day of actual service Acts of 1878
upon such - court, to be paid out of the military fund, upon the Gov-- 1 ', p- 112 -
ernors warrant ; and any officer failing or refusing to serve, without suffi-
cient excuse, to be judged of by the court, shall be fined in a like sum
of five dollars for each day's absence, to be collected by execution issued
in the same manner as provided in the foregoing section, to be first ap-
plied to the payment of the expenses of the court, and the residue, if
any, to be paid into the treasury of the State, to become a part of the
military fund. And any non-commissioned officers, or soldiers, not ex-
ceeding three, appointed by the president of the court to preserve order,
or execute the orders of the court, shall be entitled to receive one dol-
lar for each day of actual attendance, to be paid in like manner as the
members of the court.
§1103. (kk.) Power of court martial to punish contempts. Every court Acts of 1878
martial ordered by the Governor, or by battalion commander, shall ~ 9 - p- 113 -
have power to punish for contempt in the same manner and to the
same extent as the Justice of the Peace. And all fines paid for con-
tempt, if the court be ordered by the Governor, shall be first applied to
the expenses of the court, and the residue, if any, shall be pa^d into the
treasury to constitute part of the military fund; if the court be ordered
by a battalion commander, such fines shall be paid to him for the use
of the battalion.
§1103. (11.) Uniform, etc., exempt from sale. No part of the uniform or Acts of ists
equipment of any volunteer officer or soldier shall be subject to levy ~ 9 > p- 113 *
and sale for debt, except for fines or other dues to his company or bat-
talion, according to its rules, and such as may be imposed on him by
sentence of a court martial.
§1103. (mm.) Volunteers exempt from militia duty. Every member of a Acts of 1878
volunteer company or battalion shall, during the continuance of his -9 > p- 113 -
membership, be exempt from militia duty; and every person who
shall have served ten years continuously in any one company or battal-
ion of volunteers, in any capacity, as an active member thereof, uni-
formed and equipped, shall be thenceforth exempt from all militia
duty, or commutation therefor, which may be required by law in time
of peace.
§1103. (nn.) Instructions and drill. The instruction and drill of the Acts of 1878 '
volunteers of each arm shall be according to the system now in use ~ 9, p- 113,
in the army of the United States, unless otherwise ordered by the Gov-
ernor, in general regulations hereinafter provided for.
§1103. (oo.) Battalion colors. Every battalion of volunteers shall Acts of 187$
carry the flag of the State, when one is adopted by Act of the General 9 ' p ' 113 '
Assembly, as its battalion colors. But this requirement shall not be
construed to prevent it from carrying, in addition thereto, any other
flag or colors of its own adoption.
§1103. (pp.) Governor may order regulations. For the purpose of car- Acts of 1878 s*
rying into effect any provisions of this Article, and of providing for ~ 9 > p- m -
the organization, discipline and government of the volunteers, in all
particulars not herein fully described, the Governor is authorized to
make and order such general regulations as he may find necessary, 'not
inconsistent with law ; and he is further authorized to furnish to the
commander of every battalion and company of volunteers, now or here-
after to be organized, at least four copies of this Article, and of any
amendments thereof, which may from time to time be passed, and of
such general regulations as he may prescribe under this section,
printed in pamphlet form, at the expense of the State. And until the
Governor shall prescribe the regulations authorized by this section,
and in all matters not fixed by this Article or by such regulations, the
general regulations of the army of the United States shall govern, so
240
PART I.— TITLE XIL— CHAPTER II.
The flag of the State.— The militia.
far as they are applicable, and not inconsistent with anything con-
tained in this Article.
§1103. (qq.) Fines, etc., how disposed of . All moneys collected for fines
Acts of 1878 and forfeitures imposed under the provisions of this Article, by courts
Acts oVisso niarfcial ordered by the Governor, or by the Superior Court of any county,
-i, p. 105. or for damages for the breach of any bond given for arms and accoutre-
ments under §1103, (v.) shall be paid into the treasury of the State, and
there constitute and be kept as a separate fund, called the " Military
Fund," and shall not be paid out for, or applied to, any other purpose
whatever than those specified in this Article, and then only upon the Gov-
ernor's warrant.
§1103. (rr.) Privileges of present volunteers. All volunteer corps hereto-
Acts ot 1878 fore organized, and in actual existence on 16th October, 1879, may retain
-9, p. ii3. an y gp ec i a i privileges heretofore conferred upon them by law, not in-
consistent with the provisions of this Article, all that part of the Code
of 1873, from section 1075 to section 1103, inclusive, all treating of the
volunteers of this State, consisting of Articles 2 and 3 of Chapter 2,
~^itle 12, Part 1, and all laws inconsistent with this Article are repealed.
ARTICLE III.
THE FLAG OF THE STATE.
Section H03. (ss.) State flag declared and described.
§1103. (ss.) Description of flag. The flag of the State of Georgia shall
Acts of 1878 be, as hereinafter described, to-wit : A vertical band of blue next the
-3; p. 114. s taff, and occupying one-third of the entire flag ; the remainder of the
space shall be divided into three horizontal parallel bands, the upper
and lower of which said bands shall be scarlet in color, and the middle
band white.
ARTICLE IV.
THE MILITIA.
Section.
1104. The militia of the State.
1105. How organized.
1106. Companies, how organized.
1107. Grade of militia officers.
1108. New divisions, etc., how created.
Section.
1109. Regiments, how organized.
1110. Non-commissioned officers.
1111. Captains make return to adjutant.
1112. Notice of drills, how given.
1113. Register of commissioned officers.
/
^-/r<Ci.
Jl_<J^Z^ <z~£-^ §1104. (1108.) (1026.) The militia. The militia of the State consists
of all persons not heretofore classified within its limits subject to mili-
tary duty, and not exempted therefrom by the Acts of Congress or the
laws of this State, ^ r . belonging to Dome volunteer organization .
§1105. (1109.) (1027.) Shall be organized, etc. The militia shall be
organized into' companies, battalions, regiments, brigades and divisions,
which shall be numbered throughout the State, by order of the com-
mander-in-chief, in such manner that every corps of the same denomi-
nation shall bear a different number, by which number every company,
district, regiment, brigade, or division, as the case may be, shall be des-
ignated in the commissions of the officers commanding the same..
§1106. (1110.) (1028.) Deficiency in numbers of district company. If, from
exemptions, there are not persons enough liable to do militia dut} r in
any district or beat, a company may be organized of those so liable from
adjoining districts or beats, and not less than forty nor more than one
hundred, under the direction of the colonel of the regiment ; and when
so done, must be accurately reported.
PART I.— TITLE XII.— CHAPTER II. 241
Article 4. — The militia.
§1107. (1111.) (1029.) Grades of officers. The following grades of mi-
litia officers shall be recognized : Commanding each division, a major-
general ; each brigade, a brigadier-general ; each regiment, a colonel,
lieutenant-colonel, and major; a separate battalion, a major; each com-
pany, a captain, first and second lieutenants, and ensign. Whenever
other grades exist, they shall continue until the same becomes vacant,
when they shall respectively cease and determine.
§1108. (1112.) (1030.) New divisions andbrigades, regimental and company
districts. New divisions and brigades shall be created by the Legislature;
regimental and company districts by order of the comander-in-chief, on
the report of the officers commanding the companies in the regimental
district, but in all cases, when practicable, the regimental district shall
be coterminous with the county in which it is situated.
§1109. (1113.) (1031.) Two or more regiments may be in same county.
There may be two or more regiments in the same county, and two or
more counties may be united to form a regiment, due regard being had
to the proportion thereof; but the existing arrangement in this behalf
shall not be disturbed except by the Legislature, unless upon applica-
tion of those interested therein. 5
§1110. (1114.) (1032.) Captain to' divide company into squads. The cap-
tain of each company shall divide his company into four squads, as
nearly equal as may be, and appoint one fit and proper person in each
as sergeant, and one as corporal, and he shall also appoint a first ser-
geant ; they shall be responsible for the proper distribution of all orders,
and may be removed by a company court martial for proper cause.
§1111. (1115.) (1033.) Returns to be made by captain to adjutant. Each
captain of a militia^company shall make out and deliver to the adjutant
of the regiment to which he belongs a full return of the number and
mimes of the men belonging to his company, on the first day of May in
each year, for which he shall receive such compensation as is paid to
the takers of the State's census, to be paid out of the military fund.
§1112. (1116.) (1034.) Summons to drill, etc., by whom given. A non-
commissioned officer, or any other person appointed for the duty, may
warn persons subject to militia duty to appear at parades, musters, or
drills, and he shall be furnished with a list of persons to be warned.
Such warning may be given verbally to the party in person, or by
leaving a written summons at his most notorious place of abode ; but
the party may claim his exemption at the time of such warning and
produce to the warning officer the evidence thereof, which may be his
own oath or such other evidence as may establish the fact, and it shall
be the duty of the warning officer to enter the exemption claimed
against the name of the party on his list.
§1113. (1117.) (1035.) Roster of officers to be kept by colonel. Each colonel
of a militia regiment shall, by himself or his adjutant, keep a roster or
list of all the commissioned officers of his regiment below the rank of
captain, and shall revise and correct the same as often as may be
necessary, and annually, on or before the first day of June, shall forward ,
to the Secretary of State copies of the returns so delivered to the adju-
tant of his regiment, as well as a copy of the roster above mentioned,
and for habitual failure in the premises, shall be liable to be tried by
a general court martial and cashiered, or otherwise punished, as said
court may direct.
16
242
PART I.— TITLE XII.— CHAPTER II.
Article 5. — Elections.
ARTICLE V.
ELECTIONS.
Section.
1114. Election of militia officers.
1115. Notice of, how given.
1116. Voters failing to attend.
Section.
1117. A plurality of votes will elect.
1118. Elections, by whom ordered.
§1114. (1118.) (1036.) Militia officers to be elected by the people. All
elections of militia officers shall be by the people; of captains and
subaltern officers, by the people of the several company districts sub-
ject to do militia duty; of field officers, by the citizens of the counties
subject to military duty under the command of such officers; brigadier
and major-generals, by the citizens of the respective brigades and
divisions subject to military duty under such commander of the brigade
or division, and may be superintended by a Justice of the Peace and a
freeholder, or by two freeholders or two military officers, as the author-
ity ordering the election may see fit to prescribe.
§1115. (1119.) (1037.) Notices of election, how given. Notices of such
elections may be given as follows : By publication in one or more
gazettes, by notice at the usual place of posting legal notices, or by
orders published at parade or drill. Twenty days' notice shall be given
of the time and place of the election of any officer below the grade of
brigadier-general.
§1116. (1120.) (1038.) Failure to elect. In case of voters failing to at-
tend at any election for militia officers, and no vote shall be polled, it
shall be the duty of the superintendents to return the fact to the Ex-
ecutive department, with a statement of the interval allowed for the
reception of votes; whereupon the commander-in-chief may, in his dis-
cretion, order a new election or appoint an officer to fill the vacancy,
and commission him accordingly.
§1117. (1121.) (1039.) Plurality of votes to elect. At all elections of mi-
litia officers, the person having the highest number of votes, shall be
declared elected, and every officer to whom a commission shall issue
shall declare to the Executive department, within a reasonable time
after its reception, his acceptance or declension of the same. After two
months have elapsed ; he shall be deemed to decline unless he shall have
uniformed and equipped himself.
§1118. (1122.) (1040.) Elections for officers above rank of captain. All
elections for militia officers of and above the rank of captain shall
be ordered by the commander-in-chief, and below that rank by the cap-
tain, or those acting as such, and on failure to elect, such captain or the
commanding officer of the company may complete the same by ap-
pointment, and such appointees shall be commissioned as in case of
elections. All officers of the military force in this State shall be com-
missionedby the Governor, whether of the line, field, or staff. The commis-
sions of staff officers, except the chiefs of the staff department, will ex-
pire with the commissions of the officers on whose staff they may be
appointed.
PART L— TITLE XIL— CHAPTER III.
243
Organization of the staff of the militia.
CHAPTER III.
ORGANIZATION OF THE STAFF OF THE MILITIA.
Section.
1119. Staff department of the militia.
1120. Of the commander-in-chief.
1121. Military duties of Secretary of State.
1122. Staff of division.
1123. Battalion entitled to a staff, when.
1124. Secretary of State.
Section.
1125. Paymaster-general, his duties.
1126. Expenses of staff department.
1127. Accounts for military service.
1128. Chief of each staff, his duties.
1129. Secretary of State chief of staff.
1130. Governor shall appoint three aids.
§1119. (1123.) (1041.) Staff departments of the militia. The staff depart-
ments of the militia shall be as follows, viz. :
1. The Secretary of State's department.
2. The quartermaster-general's department.
3. The commissary-general's department.
4. The paymaster-general's department.
5. The judge-advocate-general's department.
6. The surgeon-general's department.
§1120. (1124.) (1042.) Chiefs of staff departments attached, how. The
hiefs of the several staff departments shall be attached to the staff of
he commander-in-chief.
§1121. (1125.) Military duties of Secretary of State. [The office of the ( a ) Acts of
djutant and inspect 
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